Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

Rome II and Tort Conflicts: A Missed Opportunity
By
SYMEON C. SYMEONIDES *
[To be published in 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008)
All rights reserved]
Abstract
This article reviews the European Union’s new Regulation on tort conflicts
(“Rome II”), which unifies and “federalizes” the member states’ laws on this
subject. The review accepts the drafters’ pragmatic premise that a rule-system built
around the lex loci delicti as the basic rule, rather than American-style “approaches,”
was the only politically viable vehicle for unification. Within this
framework, the review examines whether Rome II provides sufficient and flexible
enough exceptions as to make the lex loci rule less arbitrary and the whole system
more workable.
The author’s answer is negative. For example, the common-domicile
exception is too broad in some respects and too narrow in other respects. Likewise,
the “manifestly closer connection” escape is phrased in exclusively geographical
terms unrelated to any overarching principle and is worded in an all-or-nothing way
that precludes issue-by-issue deployment and prevents it from being useful in all but
the easiest of cases. The review concludes that, although attaining a proper
equilibrium between legal certainty and flexibility is always difficult, Rome II errs
too much on the side of certainty, which ultimately may prove elusive.
On the whole, Rome II is a missed opportunity to take advantage of the rich
codification experience and sophistication of modern European conflicts law.
Nevertheless, Rome II represents a major political accomplishment in unifying and
equalizing the member states’ laws on this difficult subject. If this first step is
followed by subsequent improvements, Europe would have achieved in a relatively
short time much more than American conflicts law could ever hope for.
Contents
I. INTRODUCTION ...................................................2
II. HISTORY .......................................................4
A. Before Rome II............................................4
B. Rome II ..................................................5
III. GENERAL FEATURES..............................................7
A. Scope....................................................7
*. Dean and Professor of Law, Willamette University College of Law; LL.B. (Private Law); LL.B.
(Public Law) University of Thessaloniki; LL.M., S.J.D. Harvard Law School.
1

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
B. Structure. ................................................8
C. Certainty vs. Flexibility......................................8
D. Jurisdiction-Selection or Content-Oriented Law-Selection. . . . . . . . . . 9
E. State or National Interests...................................12
F. Issue-by-Issue Analysis and Dépeçage. ........................13
IV. THE GENERAL RULE.............................................15
V. THE EXCEPTIONS................................................20
A. The List.................................................20
B. The Common Habitual-Residence Rule. . . . . . . . . . . . . . . . . . . . . . . . 21
C. The General Escape........................................24
1. The Closer-Connection Escape. . . . . . . . . . . . . . . . . . . . . . . . . 25
2. The Pre-existing Relationship Exception.. . . . . . . . . . . . . . . . . 31
D. Compensation for Traffic Accidents.. . . . . . . . . . . . . . . . . . . . . . . . . . 32
VI. PRODUCT LIABILITY.............................................34
VII. ENVIRONMENTAL TORTS. .......................................37
VIII. RULES OF “SAFETY AND CONDUCT”...............................39
IX. PARTY AUTONOMY. ............................................43
X. CONCLUDING THOUGHTS..........................................44
1. The English text of the Regulation can be found in the Official Journal of the European Union,
2007 O.J. (L 199) 40. Excerpts discussed in this essay are reproduced in an Appendix at ???,
infra.
2. ROME II, closing sentence. See also Treaty establishing the European Community, art. 249(2).
3. ROME II, art. 32.
I. INTRODUCTION
On July 11, 2007, the European Parliament and the Council of the European
Union adopted “Regulation (EC) No 864/2007 on the Law Applicable to
1
Non-Contractual Obligations” known as “Rome II.” In European Union parlance,
2
a regulation is “binding . . . and directly applicable” in all member countries without
the need for implementing national legislation in each individual country. The
3
Regulation is scheduled to go into effect on January 11, 2009. It will preempt the
4
national choice-of-law rules of the European Union’s member states on noncontractual
obligations arising from torts or delicts and from other acts or facts. 5
Unlike some other regulations which apply only within the European Union, Rome
II will have “universal application,” in the sense that it will cover torts occurring both
within and outside the Union, and it may lead to the application of the law of a nonmember
state. Rome II is a dramatic step in the federalization or “Europeanization”
4. Rome II will not apply to Denmark. See ROME II, recital (40), art. 1(4).
5. Among the non-contractual obligations arising from acts other than torts are those arising from
unjust enrichment, negotiorum gestio, and culpa in contrahendo. Rome II covers these
obligations in arts. 10-12. This essay does not discuss these articles.
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of private international law (PIL) in the EU member states, a step that has been aptly
characterized as the European conflicts revolution. 6
7
This essay discusses the main provisions of Rome II on tort conflicts. The
fact that the essay’s author has spent the last three decades laboring in the American
conflicts vineyard, inevitably influences his views on the subject. Nevertheless, to the
extent this essay criticizes Rome II, it is not—at least not consciously—for failing to
emulate any American models, but rather for failing to take full advantage of the
richness, sophistication, and progress of modern European PIL. Indeed, while
American conflicts law was stumbling through a loud “revolution” and then engaging
8
in endless navel-gazing about how to end it, European PIL was going through a quiet
evolution, gradually repairing the old system and producing several noteworthy PIL
9 10 11 12 13
codifications, among them the Belgian, Dutch, English, German, and Swiss,
to mention just a few. Unfortunately, Rome II does not compare favorably with these
6. Johan Meeusen, Instrumentalisation of Private International Law in the European Union:
Toward a European Conflicts Revolution? 9 EUR. J. MIGR.& L. 287 (2007).
7. For other discussions of Rome II, including earlier versions, see, e.g., Janeen M. Carruthers &
Elizabeth B. Crawford, Variations on a Theme of Rome II: Reflections on Proposed Choice of
Law Rules for Non-contractual Obligations, 9 EDINBURGH L. REV. 65, 238 (2005;) Peter Hay,
Contemporary Approaches to Non-Contractual Obligations in Private International Law
(Conflict of Laws) and the European Community’s “Rome II” Regulation, EUROPEAN LEGAL
FORUM I-137 (4-2007); Cyril Nourissat & Edouard Treppoz, Quelques observations sur
leavened-projet de proposition de reglement du Conseil sur la loi applicable aux obligations
non contractuelles Rome II , 45 J. DR. INT’L 130 (2003); Willibald Posch, The “Draft
Regulation Rome II” in 2004: Its Past and Future Perspectives, 6 YBK PRIV. INT’L L. 129
(2004); Ansgar Staudinger, Rome II and Traffic Accidents, EUROPEAN LEGAL FORUM 61 (4-
2005); Peter Stone, The Rome II Proposal on the Law Applicable to Non-contractual
Obligations, EUROPEAN LEGAL FORUM 213 (4-2004); von Gerhard Wagner, Internationales
Deliktsrecht, die Arbeiten an der Rom II Verordnung und der Europäische
Deliktsgerichtsstand, IPRAX 372 (2006); Russell J. Weintraub, Rome II and the Tension
Between Predictability and Flexibility, 19 RIV. DIR. INT’LE PRIV. E PROCESS 561 (2005).
8. See SYMEON C. SYMEONIDES, THE AMERICAN CHOICE-OF-LAW REVOLUTION: PAST, PRESENT
AND FUTURE (2006) [hereinafter THE CHOICE-OF-LAW REVOLUTION].
9. See CODE DE DROIT INTERNATIONAL PRIVÉ (Loi du 16 juillet 2004, Moniteur Belge 27 Juillet
2004 (1), hereafter “BELGIAN PIL CODE.”
10. See ACT OF 11 APRIL 2001REGARDING CONFLICT OF LAWS ON TORTS, Staatsblad 2001, 190,
effective 1 June 2001 (hereafter “DUTCH PIL ACT”). For English translation with an
Introductory Note by P. Vlas, see NETHERLANDS INT’L L. REV. 221 (2003-2).
11. See PRIVATE INTERNATIONAL LAW (MISCELLANEOUS PROVISIONS) ACT OF 1995 (c 42), 8
November 1995, hereafter cited as “ENGLISH PIL ACT.”
12. See FEDERAL ACTS OF 1986 AND 1999 FOR THE REVISION OF PRIVATE INTERNATIONAL LAW
(AMENDING THE INTRODUCTORY LAW TO THE CIVIL CODE (EGBGB)) (Transl. by Wegen, 27
I.L.M. 1, 18 (1988), and Hay, 47 AM. J. COMP. L. 650 (1999)), hereafter referred to as EGBGB.
13. See FEDERAL LAW OF 18 DECEMBER, 1987 ON PRIVATE INTERNATIONAL LAW (Transl. by Cornu,
Hankins & Symeonides, 37 AM. J. COMP. L. 193 (1989), hereafter cited as “SWISS PIL ACT.”
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codifications, thus underscoring the fact that law reform is far more difficult at the
multinational than the national level.
A. Before Rome II
II. HISTORY
In recent European history, the first effort to codify choice of law for torts at
a multinational level was the Benelux Uniform Law on Private International Law of
14
1969, which was based on work that began as early as 1951. Although it never
entered into force, the Uniform Law was surprisingly modern for its day. Its basic
rule for tort conflicts was to apply the law of the place of tortious conduct, but subject
to a wisely drafted escape clause. The escape provided that, “if the consequences of
a wrongful act belong to the legal sphere of a country other than the one where the
act took place, the obligations which result therefrom shall be determined by the law
15
of that other country.” This escape was phrased broadly enough to cover not only
cross-border torts in which the consequences of conduct in one country are felt in
another country, the country of injury, but also cases such as the one in the famous
16
New York case Babcock v. Jackson, namely intra-state torts in which both parties
are domiciled in another country (common-domicile cases). We shall return to this
point later.
The next major effort took place in 1967, in the context of the then European
Economic Community. By 1972, this effort produced the E.E.C. Draft Convention
17
on Contractual and Noncontractual Obligations. Its main provision on tort conflicts
also adopted the place of conduct rule, but was accompanied by a more elaborate,
two-prong escape:
[I]f, on the one hand, no significant link exists between the situation
resulting from the event which caused the damage and the State in
which the event occurred and if, on the other hand, such situation has
a predominant connection (connexion prépondérante) with another
14. See Kurt H. Nadelmann, The Benelux Uniform Law on Private International Law, 18
AM.J.COMP.L. 406 (1970). An English translation of the Uniform Law is reproduced id. at 420-
425.
15. BENELUX UNIFORM LAW, Art. 14 (emphasis added).
16. 191 N.E.2d 279 (N.Y. 1963). Babcock applied New York law to a suit by a New York guestpassenger
against her New York host-driver and his insurer for injury sustained in a traffic
accident in Ontario, during a short trip there. Ontario’s guest-statute prohibited the suit, while
New York law allowed it.
17. For an English translation of the Draft Convention, see 21AM. J. COMP. L. 587 (1973). For
discussion, see Kurt H. Nadelmann, Impressionism and Unification of Law: The EEC Draft
Convention on the Law Applicable to Contractual and Non-Contractual Obligations, 24 AM.
J. COMP. L. 1 (1976).
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
State, the law of that State shall apply. 18
The escape continued with an explicit common-domicile presumption for Babcock
19 20
type cases, and with the sensible notion —which Rome II does not repeat — that,
in cases of multiple victims, “the applicable law shall be determined separately for
21
each of them.” Finally, the draft convention included a special provision, also
22
contained in two Hague conventions of the same period, which called for “taking
into account” certain rules of “safety and public order” in force in the conduct state. 23
This provision survived in slightly different verbiage in Rome II as discussed
24 below.
With the expansion of the Community to nine members states in 1973,
following the accession of the United Kingdom, Ireland, and Denmark, the effort
slowed down. It slowed to the point that the decision was made to abandon the tort
provisions of the draft convention and instead to concentrate on contract conflicts.
25
In 1980, the Convention on the Law Applicable to Contractual Obligations, now
known as the “Rome Convention,” was opened for signature, and it entered into force
on April 1, 1991.
B. Rome II
The idea of addressing tort conflicts received new impetus with the Treaty of
Amsterdam of October 2, 1997, when the European Commission began soliciting
feedback on measures to implement the provisions of the Treaty regarding judicial
cooperation in civil matters with cross-border impact. By 1998, the idea of a
convention on tort conflicts was adopted in principle and, later that year, the first
draft proposal was put forward by the Groupe européen de droit international privé
18. EEC DRAFT CONVENTION ON CONTRACTUAL AND NONCONTRACTUAL OBLIGATIONS, art. 10(2).
19. See id. at art. 10(3) (“Such a connection must normally be based on a connecting factor common
to the victim and the author of the damage.”).
20. See infra at text accompanying note 130.
21. Id. at art. 10(4). The placement of this statement suggested that it was intended to be used not
only in applying (or not applying) the common-domicile presumption, but also in applying the
general, “closer connection” escape.
22. See art. 7 of the HAGUE CONVENTION OF 4 MAY 1971 ON THE LAW APPLICABLE TO TRAFFIC
ACCIDENTS & art. 9 of the HAGUE CONVENTION OF 2 OCTOBER 1973 ON THE LAW APPLICABLE
TO PRODUCTS LIABILITY.
23. See EEC DRAFT CONVENTION art. 12. (“Irrespective of which law is applicable under Article
10, in determining liability account shall be taken of rules of safety and public order in force at
the place and time of the event which caused the damage.”).
24. See ROME II, art. 17, discussed infra VIII.
25. The consolidated text of the Convention as amended by the various Conventions of Accession,
and the declarations and protocols annexed to it, is published in 1998 O.J. (C 27, 26,1) 34.
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26 (GEDIP). This proposal was an elegant, sophisticated, and flexible document which
has influenced the general content and coverage of Rome II, although not where it
matters most. In May 2002, the European Commission published a preliminary draft
27 proposal and invited comments from the public. In addition to holding public
hearings, the Commission received, and posted on the internet, more than eighty
written commentaries from interested parties, including trade and industry groups,
28
professional organizations, governments, practitioners, and academics. Although
the majority of the commentaries came from industry groups and tended to support
the most regressive elements of the preliminary draft, the whole process is a good
example of European democracy at work.
29
The Commission finalized its proposal on July 22, 2003. The proposal was
accompanied by a detailed Explanatory Report (hereafter “Report”) and an article-byarticle
commentary. This Report is the only complete explanation of the thinking
underlying Rome II and it remains authoritative as to all of the remaining unamended
provisions.
The process then shifted to the European Parliament where the rapporteur,
30
British MEP Diana Wallis, continued to solicit feedback, especially from
31
academics. The rapporteur tried valiantly to inject some flexibility into the
Commission’s proposal and, on July 6, 2005, she succeeded in having Parliament
26. See Proposal for a European Convention on the Law Applicable to Non-contractual
Obligations adopted at the Luxembourg meeting of Sept. 25-28, 1998, available at
http://www.drt.ucl.ac.be/gedip/gedip-documents-8pe.html.
27. See Preliminary Draft Proposal for a European Council Regulation on the Law Applicable to
Non-Contractual Obligations, available at http://europa.eu.int/comm.justice_home/ unit/civil/consultation/I
ndex_en.html [hereinafter Commission, Preliminary Draft Proposal].
28. For a comprehensive academic proposal put forward during this period by the Hamburg Group
of Private International Law, see Comments on the European Commission’s Draft Proposal for
a European Council Regulation on the Law Applicable to Non-Contractual Obligations (Oct.
10, 2002), 67 RABELSZ 1 (2003).
29. See Commission of the European Communities, Proposal for a Regulation of the European
Parliament and the Council on the Law Applicable to Non-Contractual Obligations, (COM
427) (2003) final, 2003/0168(C)D), Brussels, (July 22, 2003) [hereinafter Commission
Proposal]. For a critique of this proposal, see Symeon C. Symeonides, Tort Conflicts and Rome
II; A View from Across, in FESTSCHRIFT FÜR ERIK JAYME 935 (H-P. Mansel, et al., eds. 2004).
30. Ms. Wallis is currently the Vice President of the European Parliament and is the former leader
of the Liberal Democrat European Parliamentary Party (LDEPP). She is an English solicitor
who also studied law in Belgium, Germany, and Switzerland and is fluent in French and
German. For more information on her background and work in the European Parliament, see
http://www.dianawallismep.org.uk/.
31. In the interest of full disclosure, it should be noted that the undersigned author is one of the
academics consulted by the rapporteur.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
32
adopt, on first reading, several amendments to that effect. However, the Council,
representing the member states, and the Commission rejected most of the amendments.
On second reading, Parliament moved closer to the Commission’s positions, 33
34
however, the Council and Commission remained unsatisfied. The process then
shifted to a Conciliation Committee, consisting of representatives of the Council,
Commission, and Parliament. The ensuing “trialogue” bridged the differences with
a compromise text that was adopted by Parliament on third reading, on July 11,
35 2007. This is the final text and is referred to hereafter as “Rome II.”
A. Scope
32. See EUR. PARL., P6_TA(2005)0284. (Codecision procedure: first reading..
33. See EUR. PARL., P6_TA(2007)0006. (Codecision procedure: second reading..
34. See Common Position (EC) No 22/2006 adopted by the Council on Sept. 25, 2006, Oy C
289E/68 (Nov. 28, 2006).
35. See supra note 1.
III. GENERAL FEATURES
Article 1 of Rome II defines the scope of the Regulation. It applies to
non-contractual obligations in “civil and commercial matters,” in “situations
involving a conflict of laws,” namely, situations having multistate contacts of the
36
kind and pertinence that implicate the laws of more than one state. The Regulation
does not apply to “revenue, customs or administrative matters or to the liability of the
State for acts and omissions in the exercise of State authority (acta jure imperii),” or
to obligations arising out of: marriage, family or similar relationships; matrimonial
property regimes; wills and succession; bills of exchange, cheques, promissory notes
and other negotiable instruments; the law of companies; relations between the
settlors, trustees and beneficiaries of voluntary trusts; nuclear damage; violations of
37
privacy and rights relating to personality, including defamation. The last topic was
initially included in the scope of Rome II, but the proposed article proved most
controversial attracting more commentary, especially from the publishing industry,
than any other provision. Eventually, the article was dropped, but a Commission
Statement accompanying Rome II pledges to study the subject again and report to
38
Parliament by December 2008.
36. Hereafter, the word “state” is used interchangeably with the word “country.”
37. The Regulation also does not apply to evidence and procedure, except as provided in Articles
21 and 22, which deal with the proof of juridical acts and presumptions regarding the burden
of proof in torts.
38. For recent academic commentary on the subject, see Christopher J. Kunke, Rome II and
Defamation: Will the Tail Wag the Dog? 19 EMORY INT’L L. REV. 1733 (2005); Aaron
Warshaw, Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims,
(continued...)
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
B. Structure
Rome II begins with forty statements or “recitals” explaining the drafters’
thinking and goals, and continues with thirty-two articles divided into seven chapters.
The most important of these chapters, and the focus of this essay, is chapter II, which
contains the general rule for all torts (Art. 4), followed by special rules on product
liability (Art. 5), unfair competition (Art. 6), environmental damage (Art. 7),
infringement of intellectual rights (Art. 8), and industrial action (Art. 9). Chapter III
deals with unjust enrichment, negotiorum gestio, and culpa in contrahendo, chapter
IV deals with party autonomy (Art. 14), and the remaining chapters contain common,
general and transitional rules.
The general rule of Article 4 is the lex loci delicti, which is defined as the law
of the place of the injury (lex loci damni). The rule is followed by an exception in
favor of the parties’ common habitual residence, and by a general escape clause
based on the “closer connection” principle. Articles 5 to 9 are phrased as either
particular applications or clarifications of the general rule for certain torts, or as
exceptions to the general rule. Before discussing these articles, it is helpful to identify
some of the general methodological features of Rome II, beginning with the balance
it strikes between certainty and flexibility.
C. Certainty vs. Flexibility
Every PIL system encounters the perennial tension between the need for
certainty and predictability on the one hand, and the need for flexibility and equity on
the other. Each system responds differently, striking a different equilibrium between
39
the two needs. For example, the GEDIP proposal, which consisted of a series of
cascading presumptions rather than rules, was a deliberate and brave choice of
flexibility over certainty. Although the GEDIP scheme was nearly perfect, the
potential for uncertainty must have alarmed the Commission, because it moved
sharply in the opposite direction of adopting a system of tightly written black-letter
rules with relatively few escapes and little room for judicial discretion. The rapporteur
40
and Parliament tried to re-inject flexibility into the draft, but, as the final text
reflects, the Commission and especially the Council remained unyielding. The only
provision that remains from the Parliament’s efforts is a recital in the Preamble
referring to the “need to do justice in the individual case,” juxtaposing it with the
38. (...continued)
32 BROOKLYN J. INT’L L. 269 (2006).
39. For a comparative discussion of the various choices, see SYMEON C. SYMEONIDES, PRIVATE
INTERNATIONAL LAW AT THE END OF THE 20TH CENTURY: PROGRESS OR REGRESS?, 21-35
(1999) [hereinafter Symeonides, “PROGRESS OR REGRESS”].
40. See, e.g., the rapporteur’s Report to the European Parliament, in Final A6-0211/2005, (June
27, 2005).
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
41
“requirement of legal certainty.” However, as explained later in discussing the
42
escape clauses of Rome II, the final balance is excessively skewed against flexibility.
The reasons for the Council’s and Commission’s political preference for
certainty over flexibility are obvious. The primary motive behind the movement to
draft Rome II, as well as the choice of the particular instrument for its implementation—a
regulation as opposed to a directive—was the need to ensure uniformity of
43
choice-of-law decisions within the European Union. These two bodies must have
concluded that uniformity would be in jeopardy if Rome II were to have too many
flexible rules or escape clauses. This was a plausible, though not necessarily the best,
conclusion. The argument that a codification intended for application by the courts of
different countries cannot afford to be flexible, is highly overrated. For example,
whatever its other faults, the Rome Convention did not fail for being too flexible.
Moreover, while no one would question the desirability of uniformity and
certainty, one can question the extent to which these values should displace all other
values of the choice-of-law process, such as the need for sensible, rational, and fair
decisions in individual cases. If the American experience has something to offer, it is
a reminder that a system that is too rigid—as the traditional American system was—
ultimately fails to deliver the promised predictability because, in a democratic society
44
no system can “mechanize judgment” and, to the extent it attempts to do so, judges
45
will ignore it. To be sure, it would be unfair to characterize Rome II as a mechanical
system. Its drafters were conscious of the need for flexibility and they attempted to
provide for some degree of it. The question is whether the drafters provided enough
flexibility, a question on which reasonable minds can differ. Only time will show
whether the final text of Rome II has found the golden mean between the competing
values of certainty and flexibility. For what it is worth, and for reasons that will
become obvious from the following discussion, this author’s opinion is that a scheme
that is closer to the GEDIP proposal or the rapporteur’s ultimately defeated proposals
would have been preferable.
D. Jurisdiction-Selection or Content-Oriented Law-Selection
41. See ROME II Preamble, recital (14).
42. See infra V.2-3.
43. See ROME II, recital (6) (“The proper functioning of the internal market creates a need, in order
to improve the predictability of the outcome of litigation, certainty as to the law applicable and
the free movement of judgments, for the conflict-of-law rules in the Member States to designate
the same national law irrespective of the country of the court in which an action is brought.”).
44. David F. Cavers, Restatement of the Law of Conflict of Laws, 44 YALE L. J. 1478, 1482 (1935).
45. In Professor Weintraub’s words, “[i]ronically Rome II is more likely to succeed in providing
reasonable foreseeability if its rules provide sufficient flexibility.” Weintraub, supra note 7, at
id.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
One difference between traditional and modern PIL is the extent to which each
considers the content of the substantive laws of the involved states before choosing
the law that would govern the case at hand. In traditional PIL, the choice was based
exclusively on the physical contacts of the involved states (“jurisdiction-selection”),
46
without regard to the content of their substantive laws. In contrast, in modern PIL,
the choice is based not only on physical contacts but also on the content and
underlying policies of the laws of the contact states (“content-oriented law
47
selection”). Content-oriented law selection is easier when the court is not bound by
statutory choice-of-law rules. When such rules exist, however, a content-oriented law
selection is possible only to the extent these rules allow it. The question here is to
what extent the rules of Rome II require jurisdiction-selection and to what extent they
permit content-oriented law selection?
Under Rome II, jurisdiction-selection is the norm and content-oriented law
selection is a limited, often unintended, exception. The majority of the dispositive
articles of Rome II designate the state whose law governs because of that state’s
physical contacts rather than because of the content of its law. This alone is not a
reason to criticize Rome II. After all, in most codified PIL systems, jurisdictionselecting
rules are bound to outnumber content-oriented rules. Secondly, as
48
documented elsewhere, carefully crafted, narrowly tailored jurisdiction-selecting
rules can achieve functionally sound results. For this to happen, however, the drafters
must identify the various typical law-fact patterns and consider whether the
application of a given state’s law produces an equally good result regardless of the
content of that law. If the answer to this question is affirmative, a jurisdiction-
49
selecting rule would be acceptable. If the answer is negative, then one or more
content-oriented rules should be drafted to accommodate the various patterns. One
question explored later in this essay is whether the jurisdiction-selecting rules of
Rome II meet this test.
Before addressing this question, it is worth noting that Rome II contains
several provisions that, directly or indirectly, permit consideration of the content of
the substantive laws of the involved countries. These provisions can be divided into
three categories:
(1) traditional provisions that allow the court to refuse to apply the normally
46. The term “jurisdiction-selection” was first coined by Professor Cavers. See David F. Cavers,
A Critique of the Choice-of-Law Problem, 47 HARV. L. REV. 173 (1933).
47. For a full discussion of these concepts, see Symeon C. Symeonides, American Conflicts Law
at the Dawn of the 21st Century, 37 WILLAMETTE L. REV. 1, 46-60 (2000).
48. See Symeonides, THE CHOICE-OF-LAW REVOLUTION 399-404.
49. One example of such a rule is the common-domicile rule for loss distribution conflicts. As
explained infra at text accompanying note 112, this rule produces good results not only when
the law of the common domicile favors the victim, but also when it favors the tortfeasor.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
applicable law to the extent it violates the forum’s mandatory rules (Article
16) or its ordre public (Article 26);
(2) provisions that require the court to choose a law that produces a particular
result, such as Article 18, which authorizes a direct action against the insurer
if such action is allowed by either the law applicable to the tort or the law
applicable to the insurance contract; and Article 14(2) and (3) which provide
that the contractually chosen law shall be disregarded to the extent it violates
certain mandatory rules; and
(3) provisions that directly allow one litigant to choose between two laws,
such as: Article 7, which allows the victim of an environmental tort to choose
between the law of the place of conduct and the law of the place of injury; and
Article 6(3)(b), which allows the plaintiff to choose the law of the forum in
certain cases involving anti-competitive restrictions.
Although some of these content-oriented provisions have long been accepted
by traditional PIL, the presence of the remaining ones suggests a selective receptiveness
to the idea of content-oriented selection on the part of the drafters of Rome II.
Moreover, as in other codifications, certain choice-of-law rules that purport to
choose a state because of its contacts rather than its law, in fact are based on certain
assumptions about the likely content of that law and to that extent they disguise
specific substantive choices. One possible example from Rome II is Article 5 on
products liability, which, as explained below, will lead to the application of the law
50
of the victim’s habitual residence in the great majority of cases. When the plaintiff
is a resident of an EU country with a generous pro-consumer law and the manufacturer
is based in a state with a pro-manufacturer law, Article 5 will ensure that the EU
plaintiff will be protected under EU standards. However, in the converse situation, the
same article will ensure that the EU defendant will be held accountable under the
lower standards of the plaintiff’s foreign residence.
Similar thinking seems to underlie recital 33 regarding damages for victims
of traffic accidents. The recital states that, “when quantifying damages for personal
injury in cases in which the accident takes place in a State other than that of the
habitual residence of the victim,” the court should “take into account all the relevant
actual circumstances of the specific victim, including in particular the actual losses
51
and costs of after-care and medical attention.” The history and meaning of this recital
52
are discussed later. Suffice it to say that, despite its precarious placement and
equivocal wording, this recital does more than recognize the relevance of foreign facts
(i.e., the costs of after-care and medical attention); it also recognizes the relevance of
50. See infra text following note 154.
51. ROME II, recital (33).
52. See infra at text accompanying note 44.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
foreign law as Parliament’s unsuccessful amendment expressly provided. Indeed, it
is the law of the foreign state that makes these facts relevant, not the other way
around. Stated another way, the fact that medical costs are high in the victim’s
residence is not significant unless the victim would be entitled to recover medical
costs under that state’s law. To this extent, recital 33 can be seen as an example of a
content-oriented law selection.
E. State or National Interests
A casual look at Rome II confirms the impression that, like most traditional
PIL systems in Europe, Rome II does not subscribe to the notion that ordinary
conflicts disputes at the private-law level implicate the interests of the involved
countries. Indeed, none of Rome II’s articles refer to state policies, much less interests,
and both the Preamble and the Explanatory Report contain several statements
describing Rome II’s goal as one of “ensur[ing] a reasonable balance between the
interests of [the parties, i.e.,] the person claimed to be liable and the person who has
sustained damage.” 53
Yet, one who looks below the surface would discover that Rome II is not
oblivious to state interests. In several instances, the Preamble refers to broader societal
interests that reach beyond the interests of private litigants. For example, with regard
to products liability, recital 20 of the Preamble speaks of the policies of “fairly
spreading the risks, . . . protecting consumers’ health, stimulating innovation, securing
54
undistorted competition and facilitating trade.” With regard to unfair competition,
recital 21 speaks of the need to “protect competitors, consumers and the general public
55
and ensure that the market economy functions properly.” Recital 25, with regard to
environmental torts, states that the need for a “high level of [environmental]
protection” and the “principle that the polluter pays” justify a choice-of-rule of
56
“discriminating in favour of the person sustaining the damage.” Finally, recital 31
recognizes the need to impose certain restrictions on the parties’ power to choose the
governing law so as to protect the weaker parties. 57
More importantly, some of Rome II’s dispositive articles can only be explained
in terms of public (and thus state) interests, rather than in terms of private interests.
Besides Article 26 which codifies the traditional ordre public exception, and Article
16 which allows the forum to interpose its own mandatory rules, many other
provisions of Rome II are designed to be sensitive to certain preferred substantive
53. ROME II, recital (16).
54. Id. at recital (20).
55. Id. at recital (21).
56. Id. at recital (25).
57. Id. at recital (31).
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
polices. The clearest example is Article 7 pertaining to environmental torts, which is
58
discussed in some detail later. Other less obvious examples are: Article 14(2)-(3),
prohibiting choice-of-law clauses to the extent they violate certain mandatory rules of
a non-chosen state or of the Community; Article 14(1)(b), allowing pre-tort choice-oflaw
clauses only in contracts between commercial parties and subjecting them to
certain limitations; and Article 6(4), prohibiting choice-of-law agreements in cases of
unfair competition and restrictions to competition.
F. Issue-by-Issue Analysis and Dépeçage
Modern choice-of-law doctrine and practice have come to recognize that in
many cases the conflict is confined to only some aspects or “issues” of the case, and
that in other cases the involved states may be interested in different aspects of the
case. Consequently, rather than seeking to choose a law as if all aspects of the case
were in dispute, the modern decisionmaker focuses on the narrow issues with regard
to which a conflict exists and proceeds accordingly. Such issue-by-issue analysis is
easier and more likely when the decisionmaker is not bound by statutory choice-oflaw
rules. When such rules exist, however, such an analysis is possible only to the
extent the rules permit it. In turn, this depends on whether these rules are phrased in
broad terms designating the law that would govern the case as a whole, or whether
they are phrased in narrower terms.
On the whole, Rome II takes a negative stance towards issue-by-issue analysis,
apparently because of the drafters’ desire to avoid as much as possible one of its
byproducts—the phenomenon of dépeçage, namely the application of the laws of
different states to different issues in the same case. Indeed, the Council and the
Commission specifically rebuffed the rapporteur’s and Parliament’s efforts to
introduce issue-by issue analysis. One of Parliament’s amendments on first reading
had attached the following concluding sentence to what became the general rule of
Article 4: “In resolving the question of the applicable law, the court seised shall,
59
where necessary, subject each specific issue of the dispute to separate analysis.” The
Council and Commission rejected this amendment. In the end, most of Rome II’s
articles were phrased in broad terms designating the law that would govern the case
as a whole, the “tort/delict.” Article 15 reaffirms this holistic approach by providing
a long list of issues that comprise the scope of the law applicable under these
articles. 60
58. See infra VIII.
59. EUR. PARL. FINAL A6-0211/2005, (June 27, 2005) p. 19/46.
60. Art. 15 provides that the scope of the applicable law encompasses virtually all issues likely to
arise in tort litigation, including the basis and extent of liability, the grounds for exemption from
liability, any limitation of liability and any division of liability, the existence, the nature and the
(continued...)
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Nevertheless, a closer look at some of the other articles reveals that Rome II
does not—because it cannot—entirely avoid an issue-by-issue analysis and thus the
possibility of dépeçage. First, some of Rome II’s articles speak of the law applicable
to the “obligation” arising out of a tort or delict, rather than to the tort or delict as a
whole. This is a wise choice of terms, which will enable courts to engage in a more
individualized evaluation of the multiple obligations that may arise from the same
events. Moreover, if Rome II uses the term obligation in its original sense of the legal
bond between the obligor and the obligee that encompasses both the obligor’s duties
and the obligee’s rights, the court will be able to further differentiate among the rights
of the individual victims and proceed accordingly.
Rome II consciously stops short of the next logical step of encouraging or even
permitting an issue-by-issue analysis of the various aspects of the obligation. Even so,
some of Rome II’s other articles contain the possibility for further splitting the issues.
Among the latter articles are:
61
(a) Article 8(2) on intellectual property rights;
62
(b) Article 14 on choice-of-law agreements;
(c) Articles 16 on mandatory rules and 26 on ordre public; 63
(d) Article 17 on rules of “safety and conduct”; 64
65
(e) Article 18 on direct actions against insurers;
(f) Articles 19 and 20 regarding subrogation, indemnification, or
60. (...continued)
assessment of damage or the remedy claimed; injunctive relief, the proper beneficiaries of the
right to claim damages, and its transferability or heritability, respondeat superior, and the
extinction or prescription of the obligation (statutes of limitation).
61. This provision can lead to the application of community law to some issues and national law to
other issues. Art, 27 can also lead to the same phenomenon by recognizing that a case may be
governed partly by the law designated by Rome II and partly by the law designated by other
choice-of-law rules contained in other community instruments.
62. Art. 14 can lead to dépeçage through several different routes. For example, the parties may
choose different laws for different aspects of the case, or they may choose one law for some
issues and none for others. Even when they choose one law for all issues, that law will not be
applied to the extent it violates the mandatory rules described in art. 14(2) or the community
rules described in art. 14(3).
63. Arts. 16 and 26 allow courts to displace the applicable law to the extent necessary to satisfy the
mandatory rules of the forum state, or to the extent that law is incompatible with the forum’s
ordre public.
64. Art. 17 (discussed infra VIII) allows the court to “take account” of the conduct rules of the
conduct state when the rest of the case is governed by the law of another state.
65. Under art. 18, the victim’s right to directly sue the tortfeasor’s insurer may be governed by the
law governing the insurance contract, although the tort may be governed by another law.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
66. Under arts. 19 and 20, the rights of subrogation, indemnification, and contribution between the
parties mentioned in the articles may be governed by a law other than the law governing the
victim’s claims against these parties.
67. See supra text accompanying note 51.
68. In fact, the possibility of dépeçage is the main reason cited by the Council and Commission for
rejecting Parliament’s express rule to that effect. Although the recital does not enjoy the same
status as an express rule in the Regulation’s main body, the recital either means what it says, in
which case the possibility of dépeçage remains, or it does not mean what it says, in which case
Parliament did not get anything from the purported compromise.
69. See infra at text accompanying notes 129-34.
70. ROME II, art. 4(1).
71. Id.
66
contribution; and
67
(g) Recital 33, which, as noted earlier, purports to authorize the application
of the law of the habitual residence of the victim of a traffic accident in
quantifying the recoverable damage, even when all the other issues resulting
from the accident are governed by the law of the accident state. 68
The above is a much longer list than the opponents of dépeçage would
ordinarily tolerate, but one provision that is missing is the general rule of Article 4,
especially the general escape of paragraph 3 in which issue-by-issue analysis (with the
possibility of dépeçage) would have been most useful. The resulting problems are
discussed later. 69
IV. THE GENERAL RULE
Rome II’s central provision is Article 4, which contains the general and
residual rules. Paragraph 1 of Article 4 provides that the applicable law shall be the
70
law of the country in which “the damage occurs” (lex loci damni). This law governs
“irrespective of the country in which the event giving rise to the damage occurred”
and “irrespective of the country or countries in which the indirect consequences of that
event occur.” 71
The operation of this rule can be illustrated by the following hypothetical
scenario, which is used throughout this essay: Blasting operations by a Swiss mining
company in the Swiss Alps cause a snow avalanche in the French Alps injuring a
group of English tourists. Although there is some room for contrary argument, it
seems that Article 4(1) views Switzerland as the country of the “event giving rise to
the damage,” France as the country in which “the damage occurs,” and England as the
country in which “the indirect consequences of that event occur.” Translated into
simpler English, Article 4(1) provides that the applicable law is the law of the country
in which the injury occurs, and more precisely the harmful physical impact (France),
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
irrespective of the country in which the injurious conduct occurred (Switzerland), and
irrespective of the country in which the indirect consequences of the injury are felt
(England).
Thus, the general rule of Rome II is nothing but a restatement of the traditional
lex loci delicti rule, with its “last event” sub-rule. It purports to be as categorical as the
corresponding rule of the American First Restatement. In its penchant to avoid any
ambiguity, the Restatement provided numerous minute localization sub-rules which,
for example, defined the place of injury as the place where “the harmful force takes
effect upon the body” in personal injury cases, and the place where “the deleterious
72
substance takes effect” in cases of poisoning. The fact that the Restatement never
attained certainty, despite having attained clarity, is a lesson that subsequent codifiers
ignore at their peril.
The Rome II codifiers note that “[t]he principle of the lex loci delicti commissi
is the basic solution for non-contractual obligations in virtually all the Member
73
States,” which of course is true, except for the fact that in many countries this
solution is subject to several exceptions. The drafters also correctly note that many
74
countries disagree in defining the locus delicti. Indeed, some countries opt for the
75 76
place of conduct, others opt for the place of injury, others apply the law of the place
of conduct in some specified cases and the law of the place of injury in other cases, 77
78
others leave the question unanswered, while others allow the victim or the court to
79
choose between the two laws. The Rome II drafters decided to resolve these
differences by unequivocally choosing the law of the place of injury, because such a
solution “strikes a fair balance between the interests of the person claimed to be liable
and the person sustaining the damage, and also reflects the modern approach to civil
80
liability and the development of systems of strict liability.” Neither of these two
reasons are self-explanatory, and the second reason regarding strict liability is
certainly debatable. As for the first reason, the only balance the lex loci damni rule
strikes between the parties is that it can be equally unfair to the plaintiff in some cases
as to the defendant in others.
72. AMERICAN LAW INSTITUTE, RESTATEMENT OF CONFLICT OF LAWS § 377 Note (1933).
73. ROME II, recital (15).
74. See ROME II, recital (15).
75. See, e.g., AUSTRIAN PIL ACT of 15 June 1978 § 48(1); POLISH PIL ACT of 1965 art. 33(1).
76. See DUTCH PIL ACT, art. 3(2); ENGLISH PIL ACT of 1995 § 11 (subject to exceptions).
77. See PORTUGUESE CIV. CODE, art. 45(1) and (2); SWISS PIL ACT, art. 133(2).
78. See SPANISH CIV. CODE art. 9; GREEK CIV. CODE, art.26; CZECHOSLOVAKIAN PIL ACT of 1963,
art 15.
79. See EGBGB art 40(1); HUNGARIAN PIL DECREE of 1979 § 32(1)(2); ITALIAN PIL ACT of May
31, 1995, art 62(1).
80. ROME II, recital (16).
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
This is not to say that, just because the lex loci damni is an old rule, or just
because it produces unfair results in some cases, the rule is bad in all cases. Despite
the recent tendency, especially among American academics, to summarily reject this
rule as an outmoded remnant of the past, a dispassionate examination of actual cases
indicates that this rule produces good or defensible results in several fact-law patterns,
although by no means all. To properly evaluate this rule one should first evaluate the
81
exceptions to which it is subject, and, second, examine the results the rule produces
in several typical patterns formed by the aggregation or disbursement of the pertinent
82
contacts (conduct, injury, and parties’ domiciles ) and the content of the laws of each
contact state. Specifically, it is helpful to distinguish between cases depending on:
(1) whether the injurious conduct and the resulting injury occurred in the same
state (intrastate torts), or in different states (cross-border torts);
(2) whether the tortfeasor and the victim were domiciled in the same state
(common-domicile cases), or in different states (split-domicile cases); and
(3) whether the conflict is between laws that primarily regulate conduct
(conduct-regulating rules) or primarily allocate the economic loss resulting
from the injury (“loss-allocation” or “loss-distribution rules”).
The above quoted terms are neither self-explanatory nor universally accepted.
Generally speaking, the distinction between conduct-regulating and loss-distributing
rules corresponds to the two grand objectives of tort law—deterrence and reparation.
Although these two objectives are often interconnected, conduct-regulating rules serve
primarily the first objective, while loss-distributing rules serve primarily the second
objective. Rome II does not adopt this distinction, except in a oblique and limited way
through Article 17, which authorizes “taking account” of the “safety and conduct”
83
rules of the conduct state. In the United States, this distinction, which was first
articulated by the New York Court of Appeals in the 1963 landmark case Babcock v.
84
Jackson, has been adopted by many courts, albeit without always using this
85
terminology and without a consensus on its precise contours. In the words of the
New York court, conduct-regulating rules are those that “have the prophylactic effect
86
of governing conduct to prevent injuries from occurring.” This category includes not
only “rules of the road” like speed limits and traffic-light rules, but also rules that
prescribe the civil sanctions for violating traffic rules, including presumptions and
81. See infra IV.
82. Hereafter, the term “domicile” is used interchangeably with the term “habitual residence” as
used in Rome II.
83. Art. 17 is discussed infra VIII.
84. 191 N.E.2d 279 (N.Y. 1963).
85. See SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 123-29 and authorities cited therein.
86. Padula v. Lilarn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994).
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
87
inferences attached to the violation; rules that prescribe safety standards for work
sites, buildings, and other premises; rules that impose punitive damages; and rules
defining as tortious conduct such as “alienation of affections,” “interference with
marriage,” or “interference with contract,” and granting an action against the actor. In
contrast, loss-distributing rules are those that “prohibit, assign, or limit liability after
88
the tort occurs.” They include not only guest statutes, which now are virtually
extinct, but also rules that define the amount of compensatory damages, and rules of
interspousal immunity, parent-child immunity, worker’s compensation immunity, and
loss of consortium.
Admittedly, the line between the two categories is not always as bright as one
would like. While some tort rules are clearly conduct-regulating and others are clearly
loss-distributing, there are many tort rules that do not easily fit in either category, and
some rules that appear to fit in both, namely they both regulate conduct and effect or
affect loss distribution. Nevertheless, despite the difficulties in its application, this
distinction provides a useful starting point for resolving or analyzing many tort
conflicts, although in many such conflicts the distinction will not make a difference.
The starting point is a presumption that conduct-regulating rules are territorially
oriented and loss-distribution rules are not necessarily territorially oriented.
Consequently, territorial contacts (namely the places of conduct and injury) remain
relevant in conduct-regulation conflicts, while both territorial and personal contacts
(i.e., the parties’ domiciles) are relevant in loss-distribution conflicts.
89
For reasons explained in detail elsewhere, as well as later in discussing the
exceptions to the lex loci damni rule, the view of this author is that this rule produces
functionally defensible results in the following patterns of cases:
(1) intrastate torts involving conflicting conduct-regulation rules, regardless
of where the parties are domiciled;
(2) intrastate torts in which the issue is one of loss distribution and either the
tortfeasor or the victim is domiciled in the state of conduct and injury; and
(3) cross-border torts involving either conduct-regulation or loss distribution
conflicts, in which: (a) the state of injury prescribes a higher standard of
conduct for the tortfeasor or of financial protection for the victim than the state
of conduct; and (b) in which the occurrence of the injury in the former state
was objectively foreseeable.
In the first two patterns, the application of the law of the state of conduct and
87. Examples include rules providing that a person involved in a collision while driving in excess
of the speed limit, or while being intoxicated, is presumed to be negligent, and rules providing
that, in a rear-end vehicular collision, the driver of the rear car is presumed to be at fault.
88. Padula, supra note 86, at id.
89. See SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 141-263.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
injury passes the scrutiny of a functional choice-of-law analysis, regardless of whether
that law favors the tortfeasor or the victim. Consequently, a jurisdiction-selecting rule
like that of Article 4(1) which is indifferent on its surface to the content of the
involved substantive laws is acceptable, besides being relatively easy to apply in the
majority of cases. In the first pattern, the state of both the conduct and injury clearly
has the strongest claim to apply its law to conduct within its borders, even if the
90
parties are both domiciled in the same foreign state. The lex loci rule honors this
91 claim. The second pattern consists of four different sub-patterns, two of which
present the direct or true conflict paradigm and two the inverse or “no interest”
paradigm. On balance, the application of the law of the state that has the two territorial
contacts (conduct and injury) and one personal contact (the domicile of one party) is
justified in all four sub-patterns, whether that law favors the tortfeasor or the victim. 92
The third pattern presents the true conflict paradigm: the state of injury has an interest
in protecting its domiciliary victim injured there, while the state of conduct has an
interest in protecting a tortfeasor acting (and often domiciled) there. In these cases, the
application of the law of the state of injury is justified if the occurrence of the injury
93
in that state was objectively foreseeable. The lex loci damni rule of Rome II produces
this result, but its failure to include a foreseeability defense may make it unfair to the
defendant, depending on the other circumstances of the case. 94
The lex loci damni rule does not produce good results in cases of the converse
pattern, namely cross-border torts in which the state of conduct prescribes higher
95
standards of conduct for the tortfeasor than the state of injury. Suppose for example
that, in the above snow avalanche hypothetical, Switzerland imposes a negligence per
se rule on mining operators who engage in blasting activities in certain areas or time
periods, while France, in order to protect its mining industry, follows an ordinary
negligence standard. In such a case, Article 4(1) calls for the application of French law
96
and specifically excludes Swiss law. In contrast, if this were an environmental tort,
90. For documentation and defense of this thesis, see id. at 213-20.
91. However, by adopting a common-domicile rule that is phrased so broadly as to trump the lex
loci rule in these cases, Rome II commits a serious error, which can only be corrected through
the back door of art. 17. See infra text accompanying notes 113 & 172.
92. For documentation and defense of this thesis, see SYMEONIDES, THE CHOICE-OF-LAW
REVOLUTION 162-91.
93. For documentation and defense of this thesis, see id. at 192-200, 228-36.
94. See infra text accompanying note 164.
95. For documentation and defense of this thesis, see SYMEONIDES, THE CHOICE-OF-LAW
REVOLUTION 200-02, 223-28.
96. Art. 17 allows the court to “take account,” but not necessarily to apply, the Swiss negligence
per se rule on the assumption that it qualifies as a rule of “safety and conduct.” See infra VIII.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
97
Article 7 would allow the victim to opt for Swiss law. The drafters decided not to
extend this option (which the Report characterizes as “the principle of favouring the
98 victim”) to other torts , because “this solution would go beyond the victim’s
99
legitimate expectations.”
This, however, is the wrong dilemma. The dilemma is not whether one should
favor victims over defendants, but rather whether—in a subject called “conflict of
laws”—one should seek to first determine whether the involved laws actually conflict.
As in the case of environmental torts, the reason for giving victims a choice is not to
benefit victims as such, but rather out of deference to the policies of the state of
conduct, which is the only state that has something to lose from the non-application
of its law. In this case, Switzerland’s negligence per se rule is intended to deter people
from engaging in inherently dangerous operations like blasting. Because the defendant
acted within Swiss territory, Switzerland has every reason to insist in determining the
legal consequences of that activity, even if in this case, the injury occurred across the
border. The effectiveness of this policy of deterrence would be seriously impaired if
exceptions to it were made for out-of-state injuries. Moreover, in terms of fairness and
party expectations, there is nothing unfair in subjecting a tortfeasor to the law of the
state in which he acted. Having violated the standards of that state, the tortfeasor
should bear the consequences of such violation and not be allowed to invoke the lower
standards of another state. Conversely, there is little reason to apply French law. Its
ordinary negligence rule was intended to protect mining defendants who operate
100
within French territory, not foreign operators operating elsewhere. In conclusion,
there is a good deal of wisdom in the rules that allow the victim or the court to choose
between the laws of the state of conduct and the laws of the state of injury in cases of
101
cross-border torts. It is regrettable that the drafters of Rome II have chosen not to
adopt a similar rule as they did with regard to environmental torts. 102
A. The List
97. Art. 7 is discussed infra VII.
98. Report, art. 3, 11.
99. Id. at 11-12.
V. THE EXCEPTIONS
As noted earlier, one cannot properly evaluate Rome II without also analyzing
the exceptions to its basic rule of lex loci damni. A careful perusal of the whole
100. Similar arguments could be made if France, but not Switzerland, limited the amount of damages
that could be recovered from mining operators. Again, art. 4(1) would mandate the application
of French law, albeit subject to the “closer-connection” escape of art. 4(3). However, for
reasons explained later, this escape will not necessarily lead to Swiss law.
101. See, e.g., EGBGB arts. 40.1, 41; SWISS PIL ACT Arts. 133(2), 136-39; ITALIAN PIL ACT art. 62;
VENEZUELAN PIL ACT art. 32(2); HUNGARIAN PIL ACT art. 32(2).
102. For contrary views, see Hay, supra note 7, at I-145; Wagner, supra note 7, at 379.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
document reveals that this rule is subject to many more exceptions than are readily
apparent. They can be divided into general exceptions, namely those that apply to all
cases, and specific exceptions that apply to particular torts. The general exceptions
include the following:
(1) The application of the law of the parties’ common habitual residence,
under Article 4(2);
(2) The application of the law of a state that has a “manifestly closer connection,”
under the escape clause of Article 4(3);
(3) The application of the mandatory rules of the forum state, under Article 16;
(4) The “taking into account” (and possible application) of the “safety and
conduct” rules of the state of conduct, under Article 17;
(5) The application of the law chosen by the parties before or after the
occurrence of the tort, under Article 14;
(6) The non-application of the lex loci (or any other law) when it is manifestly
incompatible with the ordre public of the forum, under Article 26.
The specific exceptions include the following:
(7) In product liability cases, the application of the law of the common
domicile of the tortfeasor and the victim, the domicile of the victim, the state
of the product’s acquisition, or the state of the “manifestly closer connection,”
under Article 5;
(8) The application of the law of the forum in certain cases involving
restrictions to competition under Article 6(3)(b);
(9) The application of the law of the state of conduct at the victim’s behest in
environmental torts, under Article 7; and
(10) The possible application of the law of the victim’s habitual residence for
quantifying recoverable damages in traffic accident cases, under recital 33.
Because of space limitations, this essay discuses only some of the
exceptions. 103
B. The Common Habitual-Residence Rule
The first “official” exception to the lex loci rule is found in paragraph 2 of
Article 4, which provides that, if at the time of the injury, the tortfeasor and the victim
have their habitual residence in the same country (hereafter “common domicile”), then
103. Additional exceptions can be found in arts. 10-12 in cases of unjust enrichment, negotiorum
gestio, and culpa in contrahendo, which are not discussed here.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
104
the law of that country applies to the exclusion of the lex loci. This exception is
repeated in Article 5 on product liability, Article 6 on unfair competition cases in
which the competition affects “exclusively” the interests of a specific competitor, 105
106
and Article 9 on industrial action. In contrast, this exception does not apply to other
unfair competition cases, cases falling within Article 7 on environmental torts, or
Article 8 on infringement of intellectual property rights. One can infer that the reason
for this exclusion is an implicit recognition that cases involving the latter categories
of cases implicate broader societal interests that go beyond the interests of the
litigants.
In adopting the common-domicile exception, Rome II joins the majority of
recent PIL codifications and international conventions in accepting the premise that
when both the tortfeasor and the victim are affiliated with the same state or state
(through nationality, domicile, or habitual residence) that state has the best claim to
determine their respective rights and obligations, even if the tort occurred entirely in
another state. This notion is implemented either through a common-domicile rule (as
in the codifications of Louisiana, Puerto Rico, Switzerland, Quebec, Belgium, and the
107
Hague Convention on Products Liability), or through an exception from the lex loci
rule. The exception is phrased either in common-domicile or common-habitual
108
residence language (as in the Dutch, German, and Hungarian codifications), or in
common-nationality language (as in the Italian, Polish, and Portuguese
109
codifications).
Article 4(2) also mirrors parallel developments in the United States. As
110
documented elsewhere, 32 of the 42 cases decided since the 1960s in which an
104. Art. 13 provides that the habitual residence of companies and other corporate or unincorporated
bodies is the place of their central administration and, for injuries caused or sustained in the
course of operation of a branch, the place where the branch is located. Art. 13 also provides that
the habitual residence of a natural person acting in the course of his or her business activity is
his or her principal place of business.
105. ROME II, art. 6(2).
106. This escape is also repeated in the art. 10-12, dealing with unjust enrichment, negotiorum
gestio, and culpa in contrahendo, which are not discussed here. However, the escape becomes
operable only if the primarily applicable law “cannot be determined.”
107. See LA. CIV. CODE ANN. art. 3544(1); PUERTO RICO DRAFT CODE art. 47(a); SWISS PIL ACT,
art. 133; QUEBEC CIV. CODE, art. 3126; BELGIAN PIL CODE, art. 99 (1); HAGUE PRODUCTS
LIABILITY CONVENTION, art. 5.
108. See DUTCH PIL ACT, art. 3(3); EGBGB art. 40(2); HUNGARIAN PIL DECREE § 32(3).
109. See ITALIAN PIL ACT, art. 62; POLISH PIL ACT, art. 31(2); PORTUGUESE CIV. CODE, art. 45. For
an exception that displaces the lex loci when the parties have either a common nationality or a
common habitual residence, see CHINA’S MODEL DRAFT LAW OF PIL, art. 114 (6th Draft 2002).
110. For citations and discussion, see SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 145-59;
EUGENE SCOLES, PETER HAY, PATRICK BORCHERS & SYMEON C. SYMEONIDES, CONFLICT OF
(continued...)
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American court of last resort abandoned the lex loci rule involved the commondomicile
pattern. Subsequently, an additional 18 common-domicile cases have
reached the highest courts of the states that had previously abandoned the lex loci rule,
thus raising to 50 the total number of common-domicile cases that have reached state
supreme courts in the post-lex loci era. Of these 50 cases, 44 cases (or 88%) have
applied the law of the common domicile, regardless of the particular choice-of-law
111
methodology the court followed. The majority of these cases (35 out of 50) involved
the Babcock v. Jackson pattern in which the law of the common domicile favors
recovery more than the law of the state of conduct and injury. These cases present the
classic false conflict paradigm in which only the state of the common domicile has an
interest in applying its law. The remaining cases involved the converse-Babcock
pattern in which the law of the common-domicile prohibits or limits recovery more
than the law of the state of conduct and injury. These cases are not as clear false
conflicts as Babcock was because the accident state arguably has an interest in
applying its law to compensate those injured in its territory and to facilitate recovery
112
of local medical costs. On balance, however, the application of the law of the
common domicile in both the Babcock pattern and its converse is entirely justified.
In this sense, a common-domicile rule that does not depend on the content of the law
of the common domicile (i.e., a jurisdiction-selecting rule) is generally preferable to
any other iteration.
It is important to stress, however, that all of the above American cases
involved conflicts between “loss-allocation” or “loss-distribution” rules, as opposed
to “conduct-regulation” rules. In contrast, the common-domicile rule of Rome II is
much broader in that it encompasses not only loss-distribution issues, but also
conduct-regulation ones. This is a serious defect. As a general proposition, a state has
an interest in enforcing its conduct-regulating rules even if neither the violator nor the
victim is domiciled in that state, and even if both parties are domiciled in the same
foreign state. For example, an Austrian motorist involved in a French accident may
not claim exemption from French traffic rules, and if injured by conduct that violates
these rules, France may not deny her the benefit of their protection. Even if both
parties are domiciled in Austria, France has the exclusive claim to apply its law to the
conduct-regulating aspects of the case. These aspects are not limited to rules of public
law or pure traffic rules such as speed limits and red lights; they also extend to rules
that impose civil liability to violations of traffic rules or attach presumptions and
inferences of fault that arise from certain violations, such as not maintaining sufficient
distance from the preceding car. Because the common-domicile rule of Rome II is
110. (...continued)
LAWS, 799-806 (4th ed. 2004).
111. The six cases that applied another law are distinguishable, overruled, or discredited. See
SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION, 149 n.17, 152-54.
112. See id. at 154.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
phrased in global terms, it would mandate the application of Austrian law to all
aspects of the case. This problem is made worse when, as in the Italian, Quebec, and
113
Polish codifications, the rule is not subject to any escapes. Rome II’s rule is subject
to two escapes: the “closer connection” clause of Article 4(3), and the possibility that
the court may “take account” of the “safety and conduct” rules of the conduct state
under Article 17. Unfortunately, as explained below, these escapes are not easily
deployable.
From a different perspective, the common-domicile rule of Rome II is too
narrow in that it applies only when the parties are domiciled in the same state but not
when they are domiciled in different countries that have the same laws. The better
view is that the latter cases are functionally analogous to common-residence cases and
114
should be treated accordingly. Suppose, for example, that while hunting in Kenya,
a French hunter injures a Belgian hunter with whom he has no pre-existing
relationship. Suppose that French and Belgian law provide the same amount of
compensation, which is much higher than that provided by Kenya. This is the classic
false conflict in which Kenya has no interest in applying its low recovery law. In such
a case, there is no reason to apply Kenyan law and every good reason to apply either
Belgian or French law. Yet, Article 4(1) of Rome II mandates the application of
Kenyan law, and, unfortunately, none of Rome II’s exceptions to the lex loci rule
would be operable in this case.
C. The General Escape
Paragraph 3 of Article 4 provides an escape from both the lex loci rule of
paragraph 1 and the common-residence rule of paragraph 2. Echoing similar escapes
113. See ITALIAN PIL ACT, art. 62(2); QUEBEC CIV. CODE, art. 3126(2); POLISH PIL ACT, art. 31(2).
114. The Louisiana codification provides that “[p]ersons domiciled in states whose law on the
particular issue is substantially identical shall be treated as if domiciled in the same state.” LA.
CIV. CODE ANN. Art. 3544(1). This legal fiction, which is particularly useful in cases with
multiple victims or defendants, enables a court to resolve these false conflicts by applying the
law of the domicile of either party, unless the general escape clause of the codification dictates
a different result. For pertinent discussion, see Symeon C. Symeonides, Louisiana’s New Law
of Choice of Law for Tort Conflicts: An Exegesis, 66 TUL. L. REV. 677, 759-63 (1992). The
American Law Institute has recommended a similar rule for mass tort cases. See AMERICAN
LAW INSTITUTE, COMPLEX LITIGATION: STATUTORY RECOMMENDATIONS AND ANALYSIS §
6.01(c)(2) & (3) (1994). In addition, in certain cases involving corporate tortfeasors, the
Louisiana common-domicile rule is subject to further expansion, or contraction, through art.
3548, which provides that a juridical person that is domiciled outside the forum state but
transacts business in that state and incurs a delictual obligation arising from such activity may
be treated as a domiciliary of that state, if such treatment is appropriate under the principles of
art. 3542.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
115
found in recent European codifications and international conventions, the escape
authorizes the court to apply the law of another country if “it is clear from all the
circumstances of the case that the tort/delict is manifestly more closely connected with
116
[that other] country.” Paragraph 3 provides an example by stating that a manifestly
closer connection “might” be based on “a pre-existing relationship between the
parties, such as a contract, that is closely connected with the tort/delict in question.” 117
In contrast to the preliminary draft, which limited the scope of the escape to cases
covered by the general rule, the final text repeats the escape in the articles dealing with
products liability (Art. 5(2)), unfair competition cases in which the competition affects
“exclusively” the interests of a specific competitor (Art. 6(2)), and choice-of-law
agreements (Art 14(2)). 118
Despite serious reservations about the scope and wording of this particular
escape, this author applauds the drafters for including an escape in the final version
of Rome II. Indeed, escapes clause are necessary in any less than perfect statutory
scheme. Because perfection is not for this world and more and more modern
legislatures have begun to recognize their fallibility, escapes have become a common
119
feature of almost all recent codifications. As Aristotle recognized many centuries
ago, any pre-formulated rule, no matter how carefully or wisely drafted, may, “due to
120
its generality,” or because of its specificity, produce results that are contrary to the
purpose for which it was designed. This “is a natural consequence of the difference
121
between law making and law application.” The question here is to what extent this
escape will help cure the deficiencies of the general rules of Rome II.
115. For a comparative discussion, see SYMEONIDES, PROGRESS OR REGRESS, 31-35.
116. ROME II, art. 3(2).
117. Id.
1. The Closer Connection Exception
The final phrasing of the escape clause is a significant improvement over that
of the Commission’s preliminary draft proposal, which was based on the failed EEC
118. This escape is also repeated in the Articles 10-12, dealing with unjust enrichment, negotiorum
gestio, and culpa in contrahendo, which are not discussed here.
119. For comprehensive discussions of this subject, see D. KOKKINI-IATRIDOU, LES CLAUSES
D’EXCEPTION EN MATIÈRE DE CONFLITS DE LOIS ET DE CONFLITS DE JURIDICTIONS – OU LE
PRINCIPE DE PROXIMITÉ (1994).
120. Aristotle, NICOMACHEAN ETHICS, V. x 7.
121. Peter Hay, Flexibility Versus Predictability and Uniformity in Choice of Law, 226 RECUEIL DES
COURS 281, 291 (1991-I).
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
122 123
draft convention of 1972 and later emulated by several national codifications.
That escape was very problematic because it consisted of two independent prongs,
both of which had to be satisfied for the escape to apply. One had to show (a) that
there was “no significant” connection to the country whose law governed under the
draft’s rules; and (b) that there was a substantially “closer” connection with another
country. The problem with this scheme was that, if taken literally, the first prong
would rarely be satisfied, thus making the second prong nothing more than cosmetic.
The problem was confounded by the fact that the escape did not contemplate a
comparison of the two connections, but rather an independent determination that the
first connection was not significant. Only when that determination confirmed the
insignificance of the first connection did the escape allow examination of the
closeness of the other connection. The final text resolved much of the problem by
eliminating the first prong and by encouraging a comparison between the two
connections. Under the final text, a party that invokes the escape need not show that
the connection of the country whose law governs under the rule is “insignificant.” All
one needs to show is that the connection with another country is “manifestly closer”
and this of course can only be determined after comparing the two connections. This
is a significant improvement for which the drafters deserve praise.
Even with these changes, however, the escape remains problematic because,
124
like its European counterparts: (a) it is phrased in exclusively geographical or
quantitative terms that are not correlated to an overarching principle; and (b) it does
not permit an issue-by-issue evaluation.
In one sense, it is logical that a system of geographically-based rules also relies
on geography when formulating escapes from those rules. Rome II is such a system
because most of its dispositive rules depend on the place in which a single critical
event occurred, or in which one or both parties reside. Very few non-geographical
factors affect the choice, and the content of the conflicting laws is a factor that appears
125
only in some narrow exceptions. Having relied on geography in erecting this
system, the drafters may have felt bound to also rely on geography to handle the
exceptional cases and overcome the inevitable impasses. Thus, if the geographically
chosen place of injury or of the parties’ common residence turn out to have a nonsignificant
connection, one must search for a place that has a “closer” connection. This
logic, however, will rarely overcome the impasses. Escapes are designed to cure the
rule’s deficiencies, not to reproduce them. To intelligently employ the escape, one
must know the reasons for which the drafter made the choices embodied in the rule
122. See supra II.1.
123. See, e.g., BELGIAN PIL ACT, art. 19(1); SWISS PIL ACT, art.15(1); QUEBEC CIV. CODE art. 3082.
For a softer phrasing, see ENGLISH PIL ACT.§ 12.
124. See supra note 115; AUSTRIAN PIL ACT, § 48(1); EGBGB art. 41(1).
125. See supra III.4.
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and the values and goals the rule seeks to promote. To simply say that one should look
for a “closer” connection gives courts little meaningful guidance and entails the risk
of degenerating into a mechanical counting of physical contacts. This risk is reduced
when the escape is correlated to the overarching principles that permeate the rules,
and/or when the escape allows an issue-by-issue evaluation.
For purposes of illustration, not emulation, one can consider the schemes of
the Restatement (Second) and the Louisiana codification. The Restatement provides
in Section 6 that the goal of the choice-of-law process is to identify the state that has
the “most significant relationship.” Although literally the quoted phrase appears to
contemplate a determination based on geography, the content of Section 6 negates any
such inference because it lists a series of substantive policies intended to guide this
determination. The subsequent sections of the Restatement provide specific rules,
most of which contain an escape authorizing the judge to apply the law of another
state if “with respect to the particular issue” that state has a more significant
126
relationship “under the principles stated in § 6.” Similarly, Article 3542 of the
Louisiana codification enunciates the general goal of the choice-of-law process for tort
conflicts as one of identifying the state whose policies would be most seriously
impaired if its law were not applied. After establishing specific rules based on that
goal, the codification also provides an escape clause in Article 3547 which authorizes
the judge to apply the law of another state if, “under the principles of Article 3542,”
the policies of that other state “would be more seriously impaired if its law were not
applied to the particular issue.” 127
The italicized phrases signify what is missing from the escape of Article 4(3)
of Rome II—issue-by-issue evaluation and correlation to non-geographical
overarching principles. The only hope comes from a statement in recital 14, which
appears to articulate the philosophy of Rome II as a whole:
The requirement of legal certainty and the need to do justice in
individual cases are essential elements of an area of justice. This
Regulation provides for the connecting factors which are the most
appropriate to achieve these objectives. Therefore, this Regulation
provides for a general rule but also for specific rules and, in certain
provisions, for an ‘escape clause’ which allows a departure from these
rules where it is clear from all the circumstances of the case that the
tort/delict is manifestly more closely connected with another country.
This set of rules thus creates a flexible framework of conflict-of-law
rules. Equally, it enables the court seised to treat individual cases in
126. AMERICAN LAW INSTITUTE, RESTATEMENT (SECOND) OF CONFLICT OF LAWS, § 146 (emphasis
added).
127. LA. CIV. CODE ANN. Art. 3547 (emphasis added).
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
an appropriate manner. 128
This recital is what survives from the rapporteur’s and Parliament’s efforts to
inject more flexibility into the text of the general rule of Rome II. As noted earlier, the
Council and Commission rebuffed these efforts and recital 14 is the resulting
compromise. While much of this recital is self-congratulatory and merely describes
the scheme of Rome II, the italicized phrases can be viewed as providing instruction
to courts on when and how to use the escape: to “treat individual cases in an
appropriate manner” and to “do justice in individual cases.” Thus, a court should
resort to the escape when the law designated as applicable by the general rule leads
to a result that is incompatible with “the need to do justice in individual cases.”
To be sure, one can object—and many will—to such a loose reading of the
escape as giving a licence for loose, ad hoc, subjective judging. While this danger is
real, it is worth the price. The alternative is a quantitative employment of the escape,
which will resolve only the easiest of conflicts. For example, a quantitative
employment of the escape will not resolve the aforementioned Kenyan hunting
accident case involving a French and a Belgian hunter, whereas an employment of the
escape with a view toward doing “justice in the individual case” would.
The second major problem with the escape is its failure to allow an issue-byissue
deployment and evaluation. As it is, the escape contemplates situations in which
the entire “tort/delict” is “manifestly” more closely connected with another country.
Paragraph 3 of Article 4 not only avoids using the dirty word “issue” but also avoids
(perhaps unintentionally) the phrase used in paragraph 1, which speaks of the law
129
applicable to “a non-contractual obligation arising out of a tort/delict.” Thus, the
escape does not even permit the court to look separately to the possibly multiple
obligations that may arise from the same facts, such as when (but not only) the case
130
involves multiple tortfeasors or victims. Instead, the phrasing of the escape forces
the court to only look at the tort as a whole. If the court finds that the tort as a whole
has a closer connection with another country, then the court is authorized to displace
the otherwise applicable law in its entirety and replace it with the law of that other
country. Thus, the escape is an “all or nothing” proposition; and therein lies its most
serious flaw.
This flaw will make the escape unavailable in all but the obvious cases. For
example, in the above snow avalanche hypothetical, it would be difficult to convince
a court that “the tort/delict” (as opposed to the specific issues of negligence per se or
damages limitations) is “manifestly” more closely connected with Switzerland. Even
if the victims’ domicile, England, also allowed unlimited damages, the court could not
128. ROME II, recital 14 (emphasis added).
129. ROME II, art. 4(1) (emphasis added).
130. See the EEC Draft Convention, supra at 20.
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
avoid the application of French law because the connection with England (which
Article 4(1) a priori condemns to a state of insignificance) will probably not qualify
as “manifestly” closer than the connection with France. The same would be true with
other issues affecting the victim’s recovery. Suppose, for example, that the avalanche
caused the death of one of the English tourists, and one of the issues in the case is who
is entitled to compensation for his wrongful death. Suppose that French law provides
that compensation is due to the victim’s surviving spouse and children together,
whereas English law provides that compensation is due to the surviving spouse to the
exclusion of the children. Under Article 4(1), the applicable law shall be the law of
the country in which “the damage occurs” (France) “irrespective of the country or
countries in which the indirect consequences of that event occur” (England). Article
15 reiterates that in such a case, French law will apply to virtually all issues likely to
arise in tort litigation, including “[which] persons [are] entitled to compensation” and
“whether a right to claim damages or a remedy may be transferred, including by
131
inheritance.” Yet England is the country most intimately involved and has the best
claim to apply its law to this issue. Rules designating the beneficiaries of a wrongful
death action reflect a society’s assumptions regarding how a person’s death impacts
his survivors and which of his survivors are likely to have the highest need for
compensation. These assumptions and value judgments belong to the society in which
the victim lived, not to the society in whose territory the injury occurred. In Rome II’s
terminology, England is “manifestly more closely connected” with regard to the issue
of wrongful death beneficiaries, even if its connections with regard to other issues may
not be the closest. Yet, the phrasing of the escape clause does not permit this focus on
the specific issue, and therefore does not allow a court to cure the rule’s deficiency.
Similar problems are encountered in employing the “manifestly closer
connection” escape to cases falling within the scope of the common-domicile rule,
especially those in which, as noted earlier, that rule is either too broad or too narrow.
In the case of the French traffic accident involving two Austrians, one could argue
that, with regard to issues of conduct and safety, France has a “manifestly closer
connection” than Austria, and thus French law should govern. The problem with this
otherwise sound argument is that it runs against the restrictive and holistic wording
of the escape, which does not allow an issue-by-issue analysis and instead speaks of
the whole “tort/delict,” as opposed to certain aspects of it, as being more closely
connected with another country. This wording makes it difficult to argue that the
entire tort is more closely connected with France, while also being governed by the
law of Austria. The same problem exists in the case of the Kenyan hunting accident
involving the French and Belgian hunters. Because the escape is worded in
geographical terms, and the hunters are not domiciled in the same country, geography
would work in favor of, not against, the lex loci. One provision that can help in the
French, but not the Kenyan, accident case is Article 17, which allows a court to “take
131. ROME II, art. 15 (f) & (e).
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
account” of the “safety and conduct” rules of the state of conduct. However, as
discussed later, this provision offers only limited relief.
A more nuanced escape clause would soften the common-domicile rule and
produce more rational results, not only in the above cases, but also in other
132
exceptional cases, or in cases in which that rule adversely affects the rights of third
parties. The latter problem is illustrated by two hypotheticals. The first involves a
single-car accident in Portugal caused in part by faulty road conditions and resulting
in injury to the car’s Spanish passenger. The passenger sues the local Portuguese
authority responsible for maintaining the road, and the authority then impleads the
car’s Spanish driver for contribution and indemnification for his fault in the accident.
The driver and passenger are married to each other and Spanish, but not Portuguese,
law prohibits interspousal suits. In such a case, one could argue that the local
authority’s claim for contribution falls outside the scope of the common-domicile
133
rule, but if the argument fails, the only way to avoid Spanish law would be by
stretching the wording of the “closer connection” escape. In the second hypothetical
the local authority is not involved, the car was rented in Portugal, and the laws are
reversed so that Portuguese, but not Spanish, law prohibits interspousal lawsuits. The
injured passenger sues the driver and the car’s insurer invoking Spanish law, while the
insurer denies coverage invoking Portuguese law. Again, if the insurer’s obligation for
134
coverage falls within the scope of the common-domicile rule, then the only way to
avoid Spanish law would be through the difficult road of employing the “closer
connection” escape.
In conclusion, while both the adoption of the common-domicile rule and the
inclusion of an escape clause in Article 4 are significant steps in the right direction,
both the rule and the escape would have benefitted from more nuanced drafting. In the
132. A case like Schultz v. Boy Scouts of America, 480 N.E.2d 679 (N.Y. 1985), is arguably such an
exceptional case. Schultz involved a suit by New Jersey parents against a New Jersey charitable
corporation for injury resulting from a sexual molestation of the plaintiffs’ child by one of
defendant’s employees in New York. Invoking the common-domicile rule, the New York Court
of Appeals applied New Jersey charitable immunity law, denying recovery.
133. The argument would be based in part on art. 20 of Rome II, which provides that, if a creditor
has a claim against several debtors who are “liable for the same claim,” the question of that
debtor’s right to demand compensation from the other debtors “shall be governed by the law
applicable to that debtor’s non-contractual obligation towards the creditor.”
134. The pertinent Rome II articles for answering this question are art. 18 & 19. Art. 18 is not
particularly helpful, except perhaps indirectly, because it only applies to the victim’s right to
“directly” sue the tortfeasor’s insurer (i.e., without joining the tortfeasor) and not to the merits
of the suit. The article allows the victim to chose between the law governing the insurance
contract and the law governing the tort. Art. 19 provides that, when a creditor has a noncontractual
claim against a debtor, and a third person has a duty to satisfy the creditor, “the law
which governs the third person’s duty to satisfy the creditor shall determine whether . . . the
third person is entitled to exercise against the debtor the rights which the creditor had against
the debtor under the law governing their relationship.”
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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
final analysis, a good escape clause can bring substantive improvements to even a bad
rule system, in addition to helping attain the proper equilibrium between the two
perpetually competing goals of certainty and flexibility. However, to perform this role
the escape must possess some degree of built-in flexibility. The drafters’ preference
for a tight escape that does not swallow the rules is understandable. However, an
escape that is so tight as to be rarely utilized, or one that is phrased in broad all-ornothing
terms, is only slightly better than no escape at all.
2. The Pre-existing Relationship Exception
As noted earlier, the second sentence of Paragraph 3 of Article 4, attempts to
provide an example of a manifestly closer connection by stating that such a connection
might be based on a “pre-existing relationship between the parties, such as a contract,
135
that is closely connected with the tort/delict in question.” As with the general
escape, this exception is also conceived of in all-or-nothing terms rather than in terms
of specific issues. Once again, the drafters’ excessive concern with avoiding the
possibility of dépeçage renders this exception far less useful than it might have been.
In fact, rather than allowing a splitting of the various tort issues, this exception
contemplates grouping them together with the issues arising from the pre-existing
relationship.
However, this is only one of the problems with this provision. The major
problem is determining which of two equally plausible objectives the drafters
intended, namely: (a) to apply the same law as that which governs the pre-existing
relationship, or (b) to apply the law of the same state in which the pre-existing
relationship is primarily centered. The Explanatory Report suggests that the drafters
136
intended the first objective. However, unlike some European codifications which
137
expressly provide to that effect, Article 4(3) of Rome II does not do so. This makes
viable the other possibility, namely, applying the law of the state in which the preexisting
relationship is centered. 138
135. ROME II, art. 4(3).
136. See Explanatory Report, p. 13 ("By having the same law apply to all their relationships, this
solution respects the parties' legitimate expectations and meets the need for sound administration
of justice. On a more technical level, it means that the consequences of the fact that one and
the same relationship may be covered by the law of contract in one Member State and the law
of tort/delict in another can be mitigated.”).
137. See, e.g., SWISS PIL ACT, art. 133(3) (“. . . when the tortious act constitutes a violation of a
pre-existing legal relationship between the tortfeasor and the injured party, claims founded on
this act are governed by the law applicable to that legal relationship.” BELGIAN PIL CODE, art.
100 (“an obligation resulting from an injurious event having a close connection with a preexisting
legal relationship between the parties is governed by the law applicable to that
relationship.”).
138. This possibility is consistent not only with the previous sentence of paragraph 3 of Article 4, but
also with the whole geographical orientation of Rome II.
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To be sure, in some cases, the two objectives will lead to the same law. For
example, if the pre-existing relationship is a family relationship centered in state X,
then the law of that state will govern that relationship and, under the above quoted
139
provision, the court may apply the same law to a related delictual obligation. If,
140
however, the relationship is contractual, then there is no guarantee that the state in
which the relationship is centered will also be the state whose law will govern the
contract. For example, the contract may contain a choice-of-law clause stipulating for
the law of state Z, even if that state has a relatively tenuous but otherwise sufficient
141
connection with the relationship. In such a case, the question is which, if any, of the
two states, X or Z, will be the candidate for the closer connection exception? Z cannot
be because, in this scenario, it does not have a close enough factual connection. On
the other hand, X has the factual connection, but the application of its law will defeat
the apparent purpose of this exception, which is to apply the same law to both the tort
and contract aspects of the case. 142
Finally, the main advantages of applying the same law to both the tort and
contract aspects of a dispute are practicality and simplicity. Obviously, these
advantages are not present when the particular dispute involves only tort issues. In
such a case, the rationale for this exception must be sought elsewhere, such as in the
ostensible expectations of the parties.
4. Compensation for Traffic Accident Victims
139. The same result can be obtained more directly through the common-residence rule of Paragraph
2. This illustrates that the above quoted sentence of Paragraph 3 is superfluous in most cases
in which the parties to the relationship are residents of the same state.
140. If the relationship is merely social rather than legal, as in Babcock v. Jackson in which the
parties where neighbors who drove together from New York to Ontario, it makes little sense to
say that the tort will be governed by the same law that governs the relationship because the
social relationship may not, as such, be governed by any law. However, it does make sense to
say that the tort will be governed by the law of the state in which the relationship was centered.
141. Under the Rome Convention, the choice of state Z law will be upheld unless “all the other
elements relevant to the situation at the time of the choice are connected with [another]
country.” Even then, the choice will be disregarded only to the extent it “prejudices the
application of rules of the law of that [other] country which cannot be derogated from by
contract.” ROME CONVENTION, art. 3(3) (emphasis added).
142. Another variation of this problem is when the contract contains a choice-of-law clause that is
partially ineffective under the Rome Convention. For example, under art. 6, a choice-of-law
clause in an employment contract will be disregarded to the extent it would deprive the
employee of the protection afforded by the mandatory rules of the state in which the employee
“habitually carries out his work.” However, the rest of the contract will be governed by the
chosen law. Thus, if a German company hires in Germany a German employee for work in
Belgium and the clause stipulates for German law, the clause will be ineffective to the extent
it violates Belgian mandatory rules but effective with regard to the rest of the contract. One of
the questions in such a case is which of the two countries (and for what issues) would qualify
as the “contract state” for purposes of applying the exception of art. 4(3) of Rome II.
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During Parliament’s first reading of Rome II, the rapporteur proposed, and
Parliament approved, the insertion of the following exception to the general lex loci
rule of what later became Article 4:
In the case of personal injuries arising out of traffic accidents, . . . the
court seised . . . should, for the purposes of determining the type of
claim for damages and calculating the quantum of the claim, apply the
rules of the individual victim’s place of habitual residence unless it
would be inequitable to the victim to do so. 143
The Council and Commission rejected this amendment, and the resulting
compromise was the insertion of the following statement in recital 33 of the final text
of the Preamble:
According to the current national rules on compensation awarded to
victims of road traffic accidents, when quantifying damages for
personal injury in cases in which the accident takes place in a State
other than that of the habitual residence of the victim, the court seised
should take into account all the relevant actual circumstances of the
specific victim, including in particular the actual losses and costs of
after-care and medical attention. 144
Obviously, this recital narrows down considerably the scope and import of
Parliament’s amendment. Besides the fact that a recital does not have the same status
and cogency as a rule in the main body of the Regulation, the recital does not
authorize the application of the law of the victim’s habitual residence. It merely
authorizes “taking into account” that law in “quantifying” damages, rather than in also
“determining the type of claim for damages,” as Parliament intended. Thus, the recital
appears to be no more than an invitation (à la Article 17) for the court to take account
145
of facts, such as the cost of medical care in the victim’s residence, in fixing the final
amount of recoverable compensation. Nevertheless, unless one assumes that the
Parliament got nothing in return for this “compromise,” the recital must mean
143. EUR. PARL. FINAL A6-0211/2005 (June 27, 2005). The accompanying justification stated that
in traffic accident cases, “applying the law of the state of the victim's place of habitual residence
is more equitable (for the victim, e.g., where he or she needs lifelong care) and more practicable
for insurers and the courts,” and that “not only the level of compensation is important, i.e., the
question of how much; rather, what FORM of compensation to be received by an injured party
is also important (in particular whether there is an entitlement to damages for pain and suffering,
a nursing and attendance allowance or certain pensions). Accordingly, the type of compensation
should be governed by the law applicable at the injured party's place of habitual residence.” Id.
20/46.
144. ROME II, recital 33. In addition, the Commission issued a Statement, reproduced as an appendix
to the final text of Rome II, promising to study the matter and report to Parliament before the
end of 2008.
145. But see supra text accompanying notes 51-52.
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something. What it may mean is that—consistently with the admonition to “do justice
in individual cases” in recital 14—a court should keep in mind (for example, in
applying the closer connection escape) the need to adequately compensate victims of
traffic accidents. Unfortunately, even if this argument is accepted, it cannot help the
Belgian hunting accident victim or the injured tourist in the snow avalanche
hypothetical because they were not victims of a traffic accident, although they were
equally deserving of protection.
146. Art. 5 makes no distinction between situations in which the product was acquired by the victim
and situations in which the product was acquired by a third party, such as a previous purchaser
or a transportation carrier. For the significance of this distinction, see SYMEONIDES, THE
CHOICE-OF-LAW REVOLUTION 268-70, 351-52.
147. Art. 5, and Rome II in general, offer little guidance for cases involving peripatetic injuries, such
as cases involving pharmaceutical products used by their eventual victims over long periods of
time while residing in different countries. For the American experience on this matter, see
SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 268-69.
148. ROME II, art. 5(1).
149. Id.
VI. PRODUCTS LIABILITY
Article 5 provides a special rule for non-contractual obligations arising from
an injury caused by a product. Paragraph 1 of the article designates, in successive
order, three countries whose law may govern: (a) the country of the victim’s habitual
146
residence; (b) the country in which the product was acquired; and (c) the country in
147
which the injury occurred. The application of each country’s law depends on
148
whether the product was “marketed in that country.” For example, if a German
plaintiff is injured in India by a product acquired in Egypt, the applicable law will be
that of Germany, if the product was marketed there; or, if not, Egypt, if the product
was marketed there; or, if not, India, if the product was marketed there.
It appears that the burden of proving that the product was marketed in the
particular country would rest with the plaintiff, although the defendant may also have
an incentive, and should be allowed, to either disprove or prove that fact. Moreover,
the last sentence of paragraph 1 expressly gives defendants a defense—they can avoid
the application of the law of each of the above three countries by demonstrating that
they “could not reasonably foresee the marketing of the product, or a product of the
149
same type” in that country. If taken literally, this could mean that, even if the
plaintiff proves (and the defendant does not disprove) that the product was actually
marketed in the particular country, the defendant can still get a second line of defense
by showing that, despite the actual marketing, “he or she could not reasonably foresee
the marketing.” This provision is unduly generous to the defendant. Fortunately, as
noted below, contemporary marketing patterns suggest that in most cases this defense
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is unlikely to succeed. In any event, if the defense does succeed, the applicable law
will not be that of the country next in line under paragraph 1 (e.g., Egypt after
Germany, or India after Egypt), but rather the law of the defendant’s habitual
151 residence. Thus, if the product was manufactured by a Japanese defendant, Japanese
law will govern the case, unless of course Japanese law is more favorable to the
plaintiff than say Egyptian or Indian law, in which case the defendant will not invoke
this defense to begin with.
Paragraph 1 of Article 5 applies “[w]ithout prejudice to Article 4(2),” which
contains the common-residence rule. This means that, if the parties have their habitual
residence in the same country, its law applies to the exclusion of all others, even if the
product was not marketed in that country. Thus, if in the above scenario the product
was manufactured by a German defendant, German law would govern, even if the
product was not marketed in Germany.
Finally, all of paragraph 1 (including the cross-reference to the commonresidence
rule) is subject to the “manifestly closer connection” escape contained in
152
paragraph 2 of Article 5. This escape authorizes a court to either: (a) deviate from
the order established in paragraph 1 and apply the law of one of the countries listed
there; or (b) apply the law of a country not listed in paragraph 1, such as the country
153
of the product’s manufacture, upon showing that the country has a manifestly closer
connection than the country whose law would normally govern under paragraph 1.
Although Article 5 appears complex in its wording, its actual operation in
practice may be much simpler, depending on how easy it will be to satisfy the basic
condition of a product’s marketing in a particular country. One could surmise that, in
today’s global market, this condition will be more and more easily satisfied in the
great majority of cases without much further inquiry or counter-proof. At least this is
what the American experience suggests. A recent study of products liability cases
decided in the United States between 1990 and 2005 shows that, in none of these cases
150. See infra at text accompanying note 154.
151. If the defendant is a juridical person, the place of its central administration is deemed to be its
habitual residence. See ROME II, art. 23(1). Even so, the defendant’s “residence” (at least when
the defendant is the manufacturer rather than the local importer or distributor ) would seem to
be the least relevant contact in today’s world of corporate mobility. In most cases, the
manufacturer is likely to be a corporate entity whose “residence” or cental administration may
be located in a country that has little relationship with the case, the product, or its manufacture.
152. ROME II, art. 5(2). The escape also repeats the “pre-existing relationship” exception with all the
problems described earlier. In addition, in all cases in which the victim was also the acquirer
of the product, either side can claim a “pre-existing relationship” between the victim and the
defendant manufacturer, distributor, or retail seller.
153. It is somewhat surprising that art. 5 does not consider the place of manufacture as a pertinent
connecting factor. For the role of this factor in American product liability conflicts, see
SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 270, 327, 351.
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did the foreign defendant invoke a similar defense. Although most of these cases
involved American manufacturers, several cases involved foreign manufacturers.
Thus, unless marketing patterns are much different in Europe, the marketing defense
will probably be unsuccessful in all but the rarest instances. In turn, this suggests that
Article 5 will lead to the application of the law of: (a) the parties’ common habitual
residence, in the few cases when such common residence exists; and (b) the victim’s
habitual residence in most of the remaining instances. Few cases would trickle down
to the law of the country of acquisition, and even fewer, if any, to the law of the
country of injury.
If these assumptions are correct, the next question is whether these results are
acceptable. In answering that question, it helps to remember that actual cases are often
far less complex than classroom hypotheticals. For example, although in the abstract
there may be good reasons to criticize the application of the law of the country of the
victim’s residence as such, it is helpful to know that, in the majority of cases that
country is likely to have at least one or more additional pertinent contacts. This was
so in seventy-two percent of the disputes in the aforementioned American study. 155
Nevertheless, although the presence of these additional contacts make the application
of the law of the victim’s domicile more defensible in practice, Article 5 itself must
also be defensible in those cases in which these other contacts are lacking. Moreover,
the fact that Article 5 does not differentiate between cases in which the law of the
victim’s domicile favors and those in which it disfavors the victim raises additional
questions. One such question is whether Article 5 favors residents of developed
156
countries and disfavors residents of lesser developed countries. In the above
hypothetical, the German plaintiff who was injured in India by a Japanese product
acquired in Egypt will get the benefit of German law. However, an Indian plaintiff
who is injured in Austria by a German product acquired in Germany will be confined
to the remedies provided by Indian law. Was this deliberate? If yes, it is one more
example of a territorialist choice-of-law rule which, though seemingly value-neutral,
disguises specific policy choices.
If the only objective of products liability law is to ensure the “right” amount
of compensation for victims, then the application of German law to the German
plaintiff and Indian law to the Indian plaintiff may be defensible. However, to the
154. See id. at 337.
155. See id. at 320-22. American courts applied the law of the victim’s domicile in sixty-five percent
of all cases, but in all but twelve percent of those cases that state had one or two additional
contacts and in more than half of them, that state had a pro-defendant law. See id. at 325.
156. For purposes of illustration, it is worth noting that American courts, which are often accused of
favoring plaintiffs, applied a plaintiff-favoring law in only fifty-two percent of the cases. See
id. at 332-33.
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extent that product liability law is also designed to serve other objectives, such as
deterring the manufacture and proliferation of unsafe products, there are good reasons
to disagree with the application of Indian law in the Indian plaintiff’s case. One can
only hope that a court would avoid such a result by invoking the closer connection
escape of Article 5.
In fairness to the Rome II drafters, it should be noted that product liability
conflicts are inherently complex and thus far no one has the perfect formula for
158
resolving them. This includes the present author who has drafted two statutory rules
159 160
for such conflicts and has proposed two other rules for the same purpose. The fact
that each of those rules differs from the others is this author’s admission that the
search for the perfect formula must continue. Article 5 of Rome II is far from the
perfect formula, but the real question is whether it is good enough.
157. ROME II, recital (2), states that “[t]he conflict-of-law rule in matters of product liability should
meet the objectives of fairly spreading the risks inherent in a modern high-technology society,
protecting consumers’ health, stimulating innovation, securing undistorted competition and
facilitating trade.”
158. For a comparative discussion of enacted and proposed rules for product liability conflicts, see
E. Scoles et al., CONFLICT OF LAWS, 934-41 (4th ed. 2004).
159. See LA. CIV. CODE ANN. Art. 3545, discussed in Symeonides, Exegesis, supra note 114, at 749-
59; PUERTO RICO DRAFT CODE, art. 48.
160. See Symeon C. Symeonides, The Need for a Third Conflicts Restatement (And a Proposal for
Tort Conflicts), 75 INDIANA L. J. 437, 450-51, 472-74 (2000); Symeonides, THE CHOICE-OF-
LAW REVOLUTION, 346-64.
161. Explanatory Report, art. 7, at 19.
VII. ENVIRONMENTAL TORTS
Article 7 of Rome II deals with environmental torts. Through a cross reference
to the general rule of Article 4(1), Article 7 provides that the applicable law is the law
of the place of injury, unless the victim of the tort opts for the law of the place of
conduct. As noted earlier, Article 7 is not subject to either the common-domicile or
the closer connection exceptions. Because this victim’s choice is meaningful only in
cases of cross-border torts in which the country of conduct and the country of injury
prescribe different standards of conduct for the tortfeasor or financial protection for
the victim, the discussion below is limited to these cases.
It is worth noting that, although at some point the Explanatory Report speaks
of “a victim in a low-protection country . . . enjoy[ing] the higher level of protection
161
available in neighbouring countries,” the reason for which Article 7 gives the victim
a choice is not to benefit the victim as such. Rather, the reason is to promote the
interests of the respective countries and of the Union as a whole in deterring pollution.
Applying whichever of the two laws subjects the polluter to a higher standard
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promotes this interest. Giving the victim a choice is simply the vehicle for ensuring
this result.
When the law of the state of conduct has a higher standard of conduct for the
tortfeasor or of financial protection for the victim than the state of injury, the victim
will opt for the law of the conduct state, thus producing the deterring effect the
drafters intended. As the Report notes, if the victim did not have this choice, the
operator would have “an incentive to establish his facilities at the border so as to
discharge toxic substances into a river and enjoy the benefit of the neighbouring
country’s laxer rules. This solution would be contrary to the underlying philosophy
of the European substantive law of the environment and the ‘polluter pays’
162
principle.” Indeed, the application of the higher standards of the conduct state in this
scenario is fully justified, whether one thinks in terms of party reliance or expectations
or, more aptly, state interests. After all, the operator should not complain for being
subjected to the standards of the state in which he acted. Having violated those
standards, he should bear the consequences of the violation and not be allowed to
invoke the lower standards of another state. In terms of state interests, the application
of the higher standards of the conduct state promotes that state’s policy in policing
conduct within its borders, without subordinating the policies of the state of injury
because the latter state does not have an interest in applying its lower-standards to
protect conduct occurring, or tortfeasors acting, beyond its borders. In other words,
this is a case that is described in the American conflicts lexicon as a classic “false
conflict.” As noted earlier, Rome II would have been a better system if the drafters had
adopted the same logic when drafting the general rule of Article 4(1).
When the law of the state of injury prescribes a higher standard than the state
of conduct, the victim will not opt for the law of the conduct state, thus again
producing the deterrent effect the drafters intended. As the Report points out, this
application is
[C]onducive to a policy of prevention, obliging operators established in
countries with a low level of protection to abide by the higher levels of
protection in neighbouring countries, which removes the incentive for an
operator to opt for low-protection countries. The rule thus contributes to
raising the general level of environmental protection. 163
Significantly, because Article 7 is not subject to any exceptions, the polluter
cannot avoid the application of the law of the state of injury by arguing, for example,
that the occurrence of the injury in that state was not foreseeable. Apparently the
article assumes that, regardless of distance, foreseeability is always present, or
alternatively, that it should make no difference. One avenue for providing some
protection for the polluter in this case is Article 17, and the Report alludes to this
162. Id. 19-20.
163. Explanatory Report, art. 7, at19.
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possibility. This author’s view is that an objective foreseeability proviso is a better
vehicle for ensuring fairness. If the polluter should have foreseen that his conduct in
one state would cause injury in another state with higher standards, the polluter should
not be able to seek refuge behind the lower standards of the state of conduct.
Conversely, when foreseeability is lacking, the court should be allowed to take
account of this factor, without necessarily exonerating the actor. For, although the
application of the law of the state of injury would be unfair to the polluter, this result
would be defensible because the non-application of that law would be equally unfair
to the victim who has no control over the situation.
164. See id. at20.
165. ROME II, art. 17.
166. See supra note 24.
VIII. RULES OF “SAFETY AND CONDUCT”
Buried towards the end of the Rome II regulation is the familiar yet somewhat
enigmatic provision of Article 17. It provides that, regardless of which law governs
the non-contractual obligation under the other articles of Rome II, in “assessing the
conduct of the person claimed to be liable, account shall be taken, as a matter of fact
and in so far as is appropriate, of the rules of safety and conduct which were in force
165
at the place and time of the event giving rise to the liability.” As noted earlier,
provisions similar to Article 17, albeit with slightly different wording, are found in the
166
1972 EEC draft convention on contractual and non-contractual obligations, the
167
Hague conventions on traffic accidents and products liability, as well as the
168 169 170
Belgian, Dutch, and Swiss codifications enacted in the interim. The Preamble
of Rome II states that the term ‘rules of safety and conduct’ should be interpreted as
referring to “all regulations having any relation to safety and conduct, including, for
167. See art. 7 of the Hague Convention of 4 May 1971 on the Law Applicable to Traffic Accidents
(“rules relating to the control and safety of the traffic”), and art. 9 of the Hague Convention of
2 October 1973 on the Law Applicable to Products Liability (“rules of conduct and safety”).
168. See BELGIAN PIL CODE, art. 102 (“consideration must be given to the safety and conduct rules”
of the conduct state).
169. See DUTCH PIL ACT, art. 8 (authorizing the “taking into account of the traffic and safety
regulations and other comparable regulations for the protection of persons or property in force
at the place of the tort.”).
170. See SWISS PIL ACT, art. 142(2) (“Rules of safety and conduct in force at the place of the act are
taken into consideration”). Cf. also PORTUGUESE CIV. CODE, art. 45(3) (“without prejudice to
provisions of local state laws which must be applied to all persons without differentiation”);
Hungarian PIL Decree, § 33.1 (“The law of the place of the tortious conduct shall determine
whether the tortious conduct was realized by the violation of traffic or other security
regulations.”).
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example, road safety rules in the case of an accident.” The very fact that Rome II
contains a separate article dealing with these rules, is an oblique and grudging
recognition of the distinction noted earlier between conduct-regulating rules and loss
distributing tort rules.
However, it is unclear whether this article is a true rule of choice-of-law rather
than a mere evidentiary instruction about which facts are relevant in determining the
172
degree of the defendant’s culpability. Although the article’s wording clearly
suggests the latter possibility, it is worth exploring whether the article is capable of
being used as a choice-of-law rule, which can lead to applying, rather than merely
“taking account” of the law of the conduct state in appropriate cases. If the answer is
affirmative, then Article 17 can provide a flexible exception to all of Rome II’s
articles that lead to a law other than that of the state of conduct, particularly: (a) the
lex loci damni rule of Article 4(1) in conflicts arising from cross-border torts; and (b)
the common-domicile rule of Article 4(2), in conflicts arising from intrastate torts.
Unfortunately, there are several obstacles to transforming Article 17 into a true
rule of choice-of-law. The first obstacle, which is not insurmountable, is that, despite
173
using the imperative “shall,” the article is entirely discretionary, as it should be. The
second obstacle is that, under the article, the court need not apply the rules of safety
and conduct, but may simply “take them into account.” Although the article itself does
not preclude the application of these rules, the Explanatory Report suggests that this
is precisely what was intended. It states that “[t]aking account of foreign law is not the
same thing as applying it: the court will apply only the law that is applicable under the
conflict rule, but it must take account of another law as a point of fact, for example
when assessing the seriousness of the fault or the author’s good or bad faith for the
174
purposes of the measure of damages.” This statement, especially the italicized word
“only,” seems to preclude the application of the safety and conduct rules of the
175
conduct state. The third obstacle is that these rules are to be taken into account “as
a matter of fact” in “assessing the conduct” of the tortfeasor, a notion that echoes
171. ROME II, recital (34) (emphasis added).
172. For the concept of foreign law as “datum,” see Erik Jayme, Ausländische Rechtsregeln und
Tatbestand inländischer Sachnormen—Betrachtungen zu Ehrenzweigs Datum-Theorie, in
GEDÄCHTNISSCHRIFT FÜR EHRENZWEIG 35 (1976); Herma H. Kay, Conflict of Laws: Foreign
Law as Datum, 53 CALIF. L. REV. 47 (1965).
173. This is clear from both the legislative history and the phrase “in so far as appropriate” in art. 17,
although that phrase also has a quantitative component.
174. Explanatory Report, art. 13, p. 25 (emphasis added).
175. The Report acknowledges the origin of Article 17 in, among others, Article 9 of the Hague
Products Liability Convention, which does “not preclude consideration being given” to the rules
of conduct and safety of the state of the product’s marketing. Despite this equivocal wording,
however, the Explanatory Report of the Hague Convention states that a court could well apply
the conduct rules of that state. See Willis Reese, Explanatory Report to the Hague Products
Liability Convention, ACTS AND DOCUMENTS OF THE TWELFTH SESSION, v. III, 251, 268 (1972).
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Ehrenzweig’s concept of foreign law as a datum. This phraseology is considerably
narrower than the Commission’s proposal, which provided that these rules were to be
177
taken into account “in determining liability.” This restrictive formulation reduces
Article 17 to a mere evidentiary instruction of how to assess the tortfeasor’s
culpability. Unfortunately, this minimalist conception prevents Article 17 from
becoming the useful corrective tool that Rome II sorely needs.
Moreover, the Rome II drafters seem to envision an even narrower, one-sided
role for Article 17. They describe it as tool for helping the tortfeasor, but not
necessarily the victim. Rome II’s preamble states that Article 17 is necessary “[i]n
178
order to strike a reasonable balance between the parties,” while the Report seems
to be preoccupied with the plight of “the perpetrator [who] must abide by the rules of
179
safety and conduct in force in the country in which he operates.” In rejecting
Parliament’s attempt at first reading to make Article 17 inapplicable to cases of
defamation and unfair competition, the Commission saw “no reason for depriving the
perpetrators of these two categories of liability of the protection which this rule gives
180
them.” Elsewhere, the Report describes a situation falling within Article 7 in which
the perpetrator complied with the lower environmental standards of the state of
conduct but not with the higher standards of the state of injury. The Report concludes
that, in such a situation, “[u]nder Article 17, the court must then be able to have regard
to the fact that the perpetrator has complied with the rules in force in the country in
which he is in business.” 181
The view of this author is that, in cases such as the one described above, the
concern for the perpetrator is excessive, if not misplaced. The key question in such
cases should be whether, under these facts, a reasonable person should have foreseen
that his conduct in the one state would produce injury in the other state. For example,
one who operates a chemical factory in close proximity to the border in state A should
have foreseen that the wind will likely carry the factory’s emissions across the border
into state B. Under these circumstances, the operator should not be allowed to seek
refuge in the lower standards of state A. Using Article 17 as such a refuge would be
contrary to the spirit of Article 7 and the “polluter pays” principle that article
176. See supra note 172.
177. Commission Proposal, art. 13 (2003). Also, the phrase “as a matter of fact and in so far as is
appropriate” was not part of the Commission’s proposal.
178. ROME II, recital (34) (“In order to strike a reasonable balance between the parties, account must
be taken of the rules of safety and conduct in operation in the country in which the harmful act
was committed, even where the non-contractual obligations is governed by the law of another
country.”).
179. Explanatory Report, art. 13, at 25.
180. COD/2003/0168 (Feb. 21, 2006) Commission modified legislative proposal (emphasis added).
181. Explanatory Report under art. 7.
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182 embodies. Likewise, returning to the snow avalanche hypothetical, the Swiss
operator who engaged in blasting operations near the Swiss-French border in the Alps
should have anticipated that his operations may cause avalanches, some of which
would occur across the border in France. If French law imposes higher standards of
conduct than Swiss law, why should the operator be allowed to seek refuge in Swiss
law?
In any event, if one is to use Article 17 to protect the tortfeasor in this scenario,
there is little justification for not using the same article in the converse scenario in
which Swiss law imposes higher standards of conduct for blasting operations than
French law. Whether one thinks in terms of state interest or simply in terms of
evenhandedness toward litigants, there is good reason to “take account” and indeed
to apply Swiss law in this case. The fact that the operator violated the standards of
Swiss law implicates Switzerland’s policies in policing conduct within its borders,
even though the consequences of that conduct in this case materialized in France.
Conversely, this case does not implicate the policies underlying the French lowerstandard
rule because that rule is designed to protect or encourage conduct within and
not beyond French borders. In other words, this is what is known in the American
conflicts lexicon as a classic “false conflict” in which only Switzerland has an interest
in applying its law, or at least to have it “taken into account.”
To be sure, the quoted term may be anathema to Rome II given its limited
recognition of the role of state interests, despite, for example, embracing the concept
of mandatory rules (Art. 16). Instead, Rome II places a premium on the need to
“ensure a reasonable balance between the interests of the person claimed to be liable
183
and the person who has sustained damage,” and the Explanatory Report purports to
explain most of Rome II’s rules in terms of the parties’ expectations. As noted earlier,
the reason for the drafters’s decision to reject a general rule of allowing the victim to
choose between the laws of the places of conduct and injury in cross-border torts other
than environmental torts is because such a solution “would go beyond the victim’s
184
legitimate expectations.” However, one can also turn that question around. Does the
application of the law of the state of conduct violate the legitimate expectations of the
tortfeasor who violated the conduct standards of that state, just because the injury
occurs across the border? The only Rome II provision that can provide a negative and,
in this author’s view, justified answer to this question is Article 17. If the drafters’
intent was to use this article only when it helps the tortfeasor but not when it helps the
victim, then it would have been preferable to suppress the article from the final text.
182. See supra note 163.
183. ROME II, recital (16), et passim.
184. Explanatory Report, art. 3, at 11-12.
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185. In cases of unfair competition, restriction to competition, and infringement of intellectual
property rights, Rome II does not allow choice-of-law agreements, either before or after the tort.
See ROME II, arts. 6(4), 8(3).
186. ROME II, art. 14(1)(b).
187. Id. The fact that Article 14 does not expressly impose the same requirement in the case of posttort
agreements may give rise to an a contrario argument that free negotiation is not necessary
in such cases. Of course, the argument should be rejected. Apparently, the drafters intended to
ensure higher scrutiny of pre-tort agreements and not to free post-tort agreements from any
scrutiny.
188. Id. art. 14(1).
189. Id.
IX. PARTY AUTONOMY
Under the heading “freedom of choice,” Article 14 of Rome II introduces the
notion that the parties to a tort may agree on which law will govern their rights and
185
obligations resulting from the tort. The article properly distinguishes between
choice-of-law agreements made before and after the tort. It allows post-tort
agreements between all parties and allows pre-tort agreements only if all the parties
186
are “pursuing a commercial activity.” In the latter case, the agreement must be
187
“freely negotiated.” For the remainder, Article 14 treats both pre-tort and post-tort
agreements alike: (1) both must be “expressed or demonstrated with reasonable
188
certainty by the circumstances of the case;” and (2) neither may prejudice the rights
189
of third parties, or derogate from the mandatory rules of a state in which “all the
190
elements relevant to the situation . . . are located,” or, in certain cases, from the
mandatory rules of Community law. 191
Obviously, post-tort agreements are far less problematical because, after the
occurrence of the tort, the parties are in a position to know of their rights and
obligations and have the opportunity to weigh the pros and cons of a choice-of-law
agreement. For this reason, these agreements need little policing by the legal system.
In fact, the system benefits from these agreements insofar as they promote judicial
economy. Precisely the opposite is true of pre-tort agreements. The parties do not (and
should not) contemplate a future tort, they do not know who will injure whom, or
what will be the nature or severity of the injury. Moreover, a weak or unsophisticated
party may uncritically sign such an agreement, even when the odds of him being the
victim are much higher than the odds of him being the tortfeasor. For these and other
190. ROME II, art. 14(2) (“Where all the elements relevant to the situation . . . are located in a country
other than the country whose law has been chosen, the choice of the parties shall not prejudice
the application of provisions of the law of that other country which cannot be derogated from
by agreement.”).
191. See ROME II, art.(3) (“Where all the elements relevant to the situation . . . are located in one or
more of the Member States, the parties’ choice of the law applicable other than that of a
Member State shall not prejudice the application of provisions of Community law . . . which
cannot be derogated from by agreement.”).
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192
reasons, pre-tort agreements should either be prohibited or, if permitted, they should
be closely policed.
Regrettably, Article 14 requires only minimal scrutiny. The only restrictions
it imposes on pre-tort agreements (that it does not impose on post-tort agreements) is
that it must be “freely negotiated” and that the parties must be “pursuing a commercial
activity.” This is neither sufficient nor free of problems. Even if the term “commercial
activity” was clearly defined or uniformly understood throughout the EU, it would still
include within its scope, relationships that are one-sided, such as those arising from
franchise, licensing, or insurance contracts. For example, a franchise contract is clearly
commercial, yet the franchisee is usually in a very weak bargaining position (which
is why so many states have enacted consumer-protection type statutes to protect
193
franchisees). By allowing pre-tort choice-of-law agreements in these contracts,
Article 14 does not live up to the statement in recital 32 that “[p]rotection should be
194
given to weaker parties by imposing certain conditions on the choice.” As with
some other freedom-laden ideas, Article 14 may well become the vehicle for taking
advantage of weak parties, many of whom are parties to “commercial” relationships.
The argument that the “mandatory rules” of paragraphs 2 and 3 of Article 14, or the
ordre public exception of Article 26 will protect the weak parties is overly optimistic
because of the high threshold these provisions require before they become operable.
192. See, e.g., EGBGB, art. 42 “After the event giving rise to a non-contractual obligation has
occurred, the parties may choose the law that shall apply to the obligation.”) (emphasis added);
BELGIAN PIL CODE, accord. But see DUTCH PIL ACT, art. 6 (“Where the parties have chosen
the law applicable to any matter relating to tort, . . . that law shall apply between them . . .”). For
the position of American cases law on this issue, see SYMEON C. SYMEONIDES, AMERICAN
PRIVATE INTERNATIONAL LAW _???__ (forthcoming 2008).
193. See SYMEONIDES, AMERICAN PRIVATE INTERNATIONAL LAW, supra note 192 at _???_.
194. ROME II, recital (31).
X. CONCLUDING THOUGHTS
Considering its starting point—the Commission’s preliminary draft— Rome
II could have been much worse. Considering the rapporteur’s valiant efforts and
Parliament’s amendments, Rome II could also have been much better. The amendments
injected more flexibility, introduced issue-by-issue analysis, and differentiated
between issues of conduct regulation and loss distribution. Had any of these
amendments survived, they would have considerably improved Rome II. Unfortunately,
the Council and Commission rejected these and other amendments. In the end,
Rome II is what it is. In this author’s view, it is a missed opportunity to do much
better. This view is reinforced by the fact that the European continent, the birthplace
of PIL, has never had a shortage of talent, sophistication, and experience in drafting
PIL legislation. Recent national codifications are a solemn testimony of that
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experience and wisdom, as is the GEDIP proposal which was drafted specifically for
the pan-European level.
Be that as it may, the final text of Rome II illustrates the difficulties of the
process of lawmaking in a multinational democratic society. More often than not, the
need to obtain a consensus, which is so important and healthy, necessitates compromises
that disturb the coherence and consistency of the final scheme. This author can
empathize with the drafters’ unenviable position, having found himself in a similar
situation in drafting two PIL codifications and being currently involved in a third. 195
During the six-year process of drafting the Louisiana codification, he had to make
196
compromises which, at the time, he strongly resisted. In retrospect, however,
besides recognizing that with regard to some of them the critics may have had the
197
better argument, he views the rest of the compromises as the political price that had
to be paid in return for getting the bill passed. It was either that, or nothing at all. The
bill became law and, for the last fifteen years, it has worked well. 198
Based on this experience, the author assumes that, as an outside observer, he
sees no more than half of the picture and acknowledges the objective political
difficulties the Rome II drafters faced in obtaining consensus. These difficulties at
least partially explain the differences between Rome II and, for example, the GEDIP
proposal. The reason the GEDIP proposal was so close to perfection had more to do
with the homogeneity of that academic group than with the fact that it encompasses
la creme de la creme of European conflicts thought. The proposal was a sophisticated
document drafted for sophisticated judges capable of, and entrusted with the discretion
necessary for making the fine balancing the proposal envisioned. In contrast, Rome
II is a pragmatic document that aims for simplicity and uniformity and primarily seeks
to preserve the status quo rather than to dramatically alter it. Whether this was the
right choice in the long run is a matter of opinion, and this author’s opinion deserves
no more deference than that of the erudite men and women who drafted Rome II or
195. See Symeon C. Symeonides, Private International Law Codification in a Mixed Jurisdiction:
The Louisiana Experience, 57 RABELSZ 460 (1993); Symeonides, Exegesis, supra note 193;
Symeon C. Symeonides, Revising Puerto Rico’s Conflicts Law: A Preview, 28 COLUM. J.
TRANSNAT’L L., 601 (1990); Symeon C. Symeonides, Codifying Choice of Law for Contracts:
The Puerto Rico Project, in LAW AND JUSTICE IN A MULTISTATE WORLD: ESSAYS IN HONOR OF
ARTHUR T. VON MEHREN, 419-37 (John Nafziger & Symeon Symeonides eds., 2002); Symeon
C. Symeonides, Oregon’s Choice-of-Law Codification for Contract Conflicts: An Exegesis, 44
WILLAMETTE L. REV. (forthcoming Dec. 2007); Symeon C. Symeonides, Codifying Choice of
Law for Contracts: The Oregon Experience, 67 RABELSZ 726 (2003).
196. See Symeonides, Exegesis, supra note 193, at 712-14, 742-48, 758-59.
197. See Symeonides, THE CHOICE-OF-LAW REVOLUTION 263; Symeon C. Symeonides, In Search
of New Choice-of-Law Solutions to Some Marital Property Problems of Migrant Spouses: A
Response to the Critics, 13 (3) COMM. PROP. J. 11 (1986).
198. See Patrick J. Borchers, Louisiana’s Conflicts Codification: Some Empirical Observations
Regarding Decisional Predictability, 60 LA. L. REV. 1061 (2000).
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the many commentators who applaud it.
In any event, although European PIL would have been better off with a
“better” Rome II, the more realistic question is whether it would have been better off
without Rome II at all. On balance, this author’s answer is in the negative. If nothing
else, and despite its flaws, Rome II will unify and thus equalize, the private
international law of the member-states of the European Union. Although for some of
these states this equalization will amount to regress, for many more states it will be
clear progress. From a transatlantic perspective, whatever its flaws, this unification or
Europeanization cannot be worse than the complete lack common direction, much less
unity, that characterizes modern American conflicts law. Moreover, one hopes that the
present text of Rome II is not the last step in the arduous process of modernizing and
unifying European private international law in tort conflicts. Indeed a review clause
in Rome II leaves the door open for future changes and adaptations. 199
199. See Rome II, art. 30 (“Not later than 20 August 2011, the Commission shall submit to the
European Parliament, the Council and the European Economic and Social Committee a report
on the application of this Regulation. If necessary, the report shall be accompanied by proposals
to adapt this Regulation.”).
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